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April, 2001 web edition

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Age Discrimination - Entry
Arbitration Procedures
E-Mail/Internet - Legal Issues
FLSA - Overtime - Roll Call & Meal periods
Funding Disputes & Reimbursement for Services
Hairstyle and Appearance Regulations
Handicap/ Abilities Discrimination - Accommodation
Homosexual & Transgender Employee Rights
Physical Impairments - Termination
Promotional Rights and Procedures
Racial Harassment
Religious Discrimination
Sick Leave & Abuse
Stress Related Claims and Defenses
Vacation Pay
Visual Acuity Standards
Wrongful Discharge/Discipline: Damages & Settlements
Cross References
Article Noted
Cases Cited

Age Discrimination - Entry

Older firefighter who failed to pass a college-based fire academy could bring federal and state age bias claims against the academy, even though he was not an employee of the college.  Claims against the city and union also survive a motion to dismiss.

     A newly hired 42 year-old municipal firefighter was terminated, because after two attempts, he was physically unable to complete a college-based fire academy.  He sued in federal court under the ADA, the ADEA and state laws, claiming that the physical fitness test unreasonably discriminates against older applicants.

     Although the plaintiff was not an employee of the Harrisburg Area Community College, the court refused to dismiss claims against the school.  The plaintiff alleged that the college “aided and abetted” age discrimination “by designing and implementing a Fire Academy in a manner calculated to exclude older persons from employment as firefighters.”

     The judge also declined to dismiss a discrimination counts against the firefighters’ union and the city.  Tyrrell v. City of Scranton, #3:CV-00-0738, 2001 U.S. Dist. Lexis 3419, 2001 WL 223244 (M.D.Pa. 3/2/2001).

Arbitration Procedures

Divided Supreme Court upholds a mandatory arbitration clause in an employment application, requiring workers to waive litigation of state and federal discrimination and other claims.

     A private sector employee filed suit in state court for unlawful discrimination, based on a California fair employment law, Govt. Code §12900.  The employer countersued in federal court, seeking to enforce a clause in the employment application, which read:

“I agree that I will settle any and all previously unasserted claims, disputes or controversies arising out of or relating to my application or candidacy for employment, employment and/or cessation of employment with [employer name], exclusively by final and binding arbitration before a neutral Arbitrator.

By way of example only, such claims include claims under federal, state, and local statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, the Americans with Disabilities Act, the law of contract and the law of tort.”

(emphasis in original).

     In upholding the clause, the majority refused to interpret the legislative history of the Federal Arbitration Act, 9 U.S. Code §1-16 (1925). They overturned a ruling by the 9th Circuit that the FAA did not apply to employment contracts; “the FAA compels judicial enforcement of a wide range of written arbitration agreements.” Seamen and rail workers are excluded from the FAA.

  The attorneys general of 22 states claimed the FAA preempt state laws which restrict or limit the ability of employers to enforce arbitration agreements. The majority said that under the Commerce Clause, the “Congress intended the FAA to apply in state courts, and to preempt state anti-arbitration laws to the contrary.”

   Four justices dissented on the interpretation of the statute. Circuit City Stores v. Adams, #99-1379, 2001 U.S. Lexis 2459, 85 FEP Cases (BNA) 266.

Text: www.supremecourtus.gov/

*    *    *    *    *    *

 » Editor's Note: We previously [1996 FP 99-100] reported a controversial decision that bars employees from bringing a suit against the employer for ADA and Title VII violations.  Austin v. Owens-Brockway, 78 F.3d 875, 1996 U.S. App. Lexis 4370, 70 FEP Cases (BNA) 272 (4th Cir. 1996); cert. den. 519 U.S. 980, 117 S. Ct. 432, 1996 U.S. Lexis 6861.

     The arbitration language must be carefully written to cover new laws and amendments.  A 1986 contract clause requiring arbitration did not waive the rights of employees to sue for violations of the Family and Medical Leave Act of 1993.  Hoffman v. Aaron Kamhi, 927 F.Supp. 640, 1996 U.S. Dist. Lexis 3600, 5 AD Cases (BNA) 707, 3 WH Cases2d (BNA) 445 (S.D.N.Y.).

     The Supreme Court has accepted a second arbitration case, which will be argued in the October 2000-01 Term of Court.  The 4th Circuit enforced an arbitration agreement in a disabilities discrimination lawsuit.

     While the arbitration agreement between the employer and employee did not prevent the EEOC from litigating the worker's discrimination claim, no monetary damages were recoverable because of the arbitration clause.  EEOC v. Waffle House, 98- 1502, 193 F.3d 805, 1999 U.S. App. Lexis 24911, 9 AD Cases (BNA) 1313 (4th Cir.); review granted #99-1823, 2001 U.S. Lexis 2688 (3/26/2001).

Text (appellate court): www.law.emory.edu/4circuit

 » The National Academy of Arbitrators has opposed mandatory arbitration of statutory rights in employment cases, but also issued guidelines for arbitrators hearing those disputes: www.naarb.org/

 » The American Arbitration Association has procedural rules for arbitration of employment disputes at: www.adr.org/

E-Mail/Internet - Legal Issues

Appeals court in Washington states rules that a fired employee’s personal e-mails, written on a county computer, were public records, but were exempt from disclosure because they did not contain government-related information.

     An employee in the county prosecutor’s office was fired for unsatisfactory work performance, including her excessive use of e-mail for personal matters.  The news media sought copies of the e-mails and she sued for injunctive relief.

     A three-judge appellate panel has held that e-mails on county computers were “public records” because they were evidence in her appeal.  They also were exempt from disclosure because the content contained nothing of public significance.  Tiberino v. Spokane Co., #18830-2-III, 103 Wn.App. 680, 13 P.3d 1104, 2000 Wash. App. Lexis 2474, 17 IER Cases (BNA) 78.

Text: www.wa.gov/courts/

*    *    *    *    *    *

Federal court dismisses a privacy claim by an employee who was fired after management accessed his e-mail storage server, and found cause for his dismissal.  Federal laws do not prohibit access of archived e-mail.

     In 1996, a private sector worker objected to management practices that he perceived as illegal.  He filed a complaint about the practices with state regulators and the state attorney general. In 1998 management paid a fine and agreed to cease the business practices the worker had complained about.

     Management searched the employee’s stored e-mail and found a letter sent to a competing company. The worker was fired and filed suit, alleging the interception of e-mail in violation of the Federal Wiretap Act, the Pennsylvania Wiretap Act, the federal Stored Communications Act, and the Electronic Communications Privacy Act of 1986 (ECPA).

     The court dismissed all counts. Management did not violate federal statutes by reading his stored e-mail, because federal statutes only prohibit interception and access of communications while in the course of transmission.  Communicating with a competitive company was just cause for his termination.

     The retrieval of e-mail from the company's server may be ethically questionable but it did not violate the ECPA.  Wiretap laws are violated, only when an e-mail is intercepted from “intermediate storage” or “back-up protection storage” -- both of which automatically occur during the course of transmission -- or if the e-mail is viewed before the intended recipient has a chance to open it.

     But once an e-mail has been viewed by the recipient, federal and state laws did not prevent subsequent inspections -- whether authorized or not.  Fraser v. Nationwide Mut. Insur., #98-CV-6726, 2001 U.S. Dist. Lexis 3241 (E.D.Pa.).

Text: www.paed.uscourts.gov/opinions/01D0225P.HTM

*    *    *    *    *    *

 » Editor's Note: Management has a right and duty to make sure that e-mail transmissions and Internet access by employees does not subject the employing entity to liability claims for tolerating racial or sexual harassment.  See Zhang v. Mass. Inst. of Techn., #96-P-1588, 46 Mass.App.Ct. 597, 708 N.E.2d 128, 1999 Mass. App. Lexis 385, 80 FEP Cases (BNA) 332 (1999), involving gender and race discrimination claims and Nuri v. PRC, 13 F.Supp.2d 1296, 1998 U.S. Dist. Lexis 18366, 77 FEP Cases (BNA) 1451; 5 F.Supp.2d 1299, 1998 U.S. Dist. Lexis 8517 (M.D.Ala.) involving a claim of sexual harassment and hostile-work-environment.

The MIT case may be viewed at: www.socialaw.com/appslip/96p1588.html

FLSA - Overtime - Roll Call & Meal periods

Federal court in D.C. notes that meals periods for uniformed officers can be compensable time, but a dominant benefit test must be used to make a determination in each case.

     Campus police and security officers sued for a half-hour of uncompensated meal time.  Officers could leave the campus during this period, if they checked their weapons and equipment.  While on campus, they remained in uniform and had to respond to inquiries by students and the public.

     The federal court noted that the 11th Circuit has held that an employee engages in work during meal periods unless the officer is completely relieved from duty.  Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 29 WH Cases (BNA) 1673 (11th Cir. 1990).

     The 6th, 7th, 8th and 10th Circuits have held that an employee engages in work during a meal period if he performs activity predominantly for the benefit of the employer.  Hill v. U.S. (postal workers), 751 F.2d 810, 1984 U.S. App. Lexis 16543, 27 WH Cases 103 (6th Cir. 1984); Alexander v. City of Chicago (police officers), 994 F.2d 333, 1993 U.S. App. Lexis 11071, 1 WH Cases2d (BNA) 657 (7th Cir. 1993); Henson v. Pulaski Co. Sheriff Dept. (deputies), 6 F.3d 531, 1993 U.S. App. Lexis 24937, 1 WH Cases2d (BNA) 1057 (8th Cir. 1993); Lamon v. City of Shawnee (police officers), 972 F.2d 1145, 1992 U.S. App. Lexis 18281, 30 WH Cases (BNA) 1665 (10th Cir. 1992).

     The court refused to grant a summary judgment, and said the determination must be based on the evidence on an individualized basis.  Summers v. Howard University, 127 F.Supp.2d 27, 2000 U.S. Dist. Lexis 20210, 6 WH Cases2d (BNA) 1278  (D.D.C. 2000).

Funding Disputes & Reimbursement for Services

Illinois Attorney General Opinion prevents public agencies from assessing user fees for access of records via the Internet.

     In the official opinion, the A.G. noted a duty of public agencies to maintain certain records that are “open to public inspection and examination.”  Allowing public access in “an additional format that allows for Internet access” is permissible, but no fee can be charged, absent statutory authority.

     “It has long been recognized that public officers may collect fees only as authorized by law” and “nothing in the ... [state’s] Electronic Commerce Security Act, the Freedom of Information Act or any other pertinent statutory provisions either expressly or impliedly authorizes [a public agency] to collect a fee ... for accessing ... records ... via the Internet.”  Ill. Atty. Gen. Opin. #00-012 (2000).

Text: www.ag.state.il.us/opinions/00-012.htm

Hairstyle and Appearance Regulations

Federal court upholds a management order that an employee cover a racially offensive tattoo on his arm.

     A Klansman sued his employer for religious discrimination under Title VII because management required him to cover an offensive tattoo.  The worker is a member of the American Knights of the Ku Klux Klan; his forearm has a hooded figure in front of a burning cross.  Two coworkers complained that the tattoo offensive and threatening.

       He sued, claiming that the cross is one seven sacred symbols.  The court dismissed his action.  An employer demand that “he cover a tattoo that, to many people, symbolizes racism and hate” is not racial harassment and does not contribute to an environment that could reasonably be viewed as hostile.  Swartzentruber v. Gunite Corp., #3:99CV0456RM, 99 F.Supp.2d 976, 83 FEP Cases (BNA) 181 (N.D. Ind. 2000).

Handicap/ Abilities Discrimination - Accommodation

Federal appeals court reinstates an ADA claim where a disabled employee sought leave to work at home.  The employer allowed other employees in her job category to work at home, and should not have fired her for poor attendance without trying at-home employment.

     A medical services support worker experienced problems getting to work on time, or at all.  She “engaged in a series of obsessive rituals that hindered her ability to arrive at work on time.”  The process of washing and brushing her hair alone could take several hours, and she at times would prepare for work from 8:00 am until 5:00 or 6:00 pm.

     A physician diagnosed her problem as obsessive compulsive disorder (OCD).  The employer had allowed her to start work at any time of the day, but denied her request to work at home.  She was fired for poor attendance, and sued under the ADA and state disability laws.

     The District Court ruled for the employer, but a three-judge appellate panel has reversed, noting that the employer did nothing to accommodate her condition.  A leave of absence for medical treatment was one possibility, under 29 C.F.R. 1630 app. §1630.2(o).

     Working at home was another possibility. EEOC Enforcement Guidance: Reasonable Accommodation, BNA FEP Manual 405:7601 (at 7626). The employer denied her this privilege because of  “tardiness and absenteeism” -- which was prior to her diagnosis of OCD.  The panel said it would be “inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.”

     “We conclude, as a matter of law, that ... [the employer] had an affirmative duty under the ADA to explore further methods of accommodation before terminating [the plaintiff].”  Humphrey v. Memorial Hosp. Assn., #98-15404, 239 F.3d 1128, 2001 U.S. App. Lexis 2099, 11 AD Cases (BNA) 765, 01 C.D.O.S. 1295 (9th Cir. 3- 23-01).

Text: www.ce9.uscourts.gov/opinions

Homosexual & Transgender Employee Rights

Federal appeals court rejects gay harassment lawsuit; coworkers mistreated him because he was a homosexual, not because of his gender.

     An appeals panel in San Francisco divided 2-to-1, holding that Oncale v. Sundowner, 523 U.S. 75 (1998) should not be read to include sexual orientation within the meaning of Title VII discrimination.  In Oncale the Supreme Court only said that same-gender sexual harassment is actionable under Title VII. The justices did not say that harassment because of a person's sexual orientation is actionable.

     Here, the parties did not dispute the existence of an objectively offensive hostile working environment because the plaintiff is an openly gay man.  However “unfortunate and distasteful that discrimination may be, simply does not fall within the purview of Title VII.”  The plaintiff offered no proof that the harassment was based on his gender, only his sexual orientation.  He “failed to raise a triable issue of fact with regard to whether the harassment he faced was motivated by his gender, and we therefore conclude that summary judgment [for the employer] was proper.”

     The dissenting judge said that the subjective belief of the victim of sexual harassment that there is a non-sex-related reason for the harassment is immaterial. The plaintiff complained that his coworkers shoved their fingers into his anus and grabbed at his genitals. “If his attackers were women or if they were gay men ... there is no question that the plaintiff's openly gay status would not be a complete defense to his Title VII claim.”

     The fact that the coworkers are heterosexual men “is no basis for a different outcome -- the attack was homosexual in nature, and his case involves allegations of sexual abuse that female employees did not have to endure.”  Rene v. MGM Grand Hotel, 98-16924, 2001 U.S. App. Lexis 5201 (9th Cir.).

Text: laws.findlaw.com/9th/9816924.html

*    *    *    *    *    *

 » Research Note: Twelve states allow such suits under their own anti-discrimination laws: California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, Vermont and Wisconsin.  Although the conduct occurred in Las Vegas and Nevada state laws would have provided a remedy, the plaintiff did not sue in state court and the statute of limitations has now expired.

Physical Impairments - Termination

Arbitrator overturns an involuntary separation of a fire captain because of procedural defects in the cardiovascular examination process.

     An Oklahoma city’s firefighter contract provided for periodic Fitness for Duty Examinations for proper cause.  In the event a city physician deems an employee unfit, the employee can select a physician of his choosing and if the two disagree, a third independent physician is selected.  A majority decision is controlling and not appealable.

     An arbitrator has ruled that a city violated the contract by (a) causing a physician's assistant to examine the grievant, and (b) the second physician was actually selected by the city and not the grievant.  City of Warr Acres and Local 2374 IAFF, 115 LA (BNA) 335 (Woolf, 2000).

Promotional Rights and Procedures

Federal court sustains a jury award of double pay plus $300,000 for emotional distress, for a NYFD promotional candidate who was denied the chance to makeup an exam missed due to military service.  Court also sustains his promotion without taking the test because of the city's refusal to offer a makeup exam.

     A NYFD Fire Marshal studied for a promotional exam.  Because of a military service obligation, he was unable to take the test at the scheduled time.  When he returned from military leave a few months later, he was denied the opportunity to take a makeup test.

     He sued the City under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S. Code §4301, and the ADA, claiming discrimination and retaliation on the basis of his military service and a perceived disability, a hearing loss.

     A federal jury found in his favor on all claims and awarded him damages under USERRA of (1) $42,000 for wage differential and (2) $42,000 in liquidated damages; under the ADA he was awarded (1) $7,800 in compensatory damages and (2) $800,000 for emotional distress. The court reduced the $800,000 to $300,000.  The amounts were then enhanced for prejudgment interest.

     The court also sustained a jury finding that the plaintiff was entitled to be promoted to the rank of Supervising Fire Marshal.  The city vigorously objected to a promotion without passing the exam, citing a low probability of success.  The court responded that the issue is not whether a candidate would be successful or not on a missed exam; the issue is the legality of the city’s conduct in refusing to allow a makeup test.

     If an employer can avoid liability by claiming that an exam has a low pass rate, an employer could avoid any adverse consequences for violation of the USERRA.  “Surely, this is not the outcome Congress intended in enacting the statute.”  Fink v. City of N.Y., #97-CV-6314, 2001 U.S. Dist. Lexis 2290, 166 LRRM (BNA) 2923 (E.D.N.Y.).

Racial Harassment

Federal court refuses to dismiss a claim that white coworkers wrote restroom wall racist graffiti, peppered the cars of black officers with BBs and left a dead fish on a black officer's desk.

     A black corrections officer sued the NYC DoC complaining of racial harassment which altered the conditions of his working environment. The DoC said that he id not established a hostile environment because only six racial incidents occurred over ten years of employment.

     The court noted the incidents were concentrated from over a two-year period and were sufficiently serious to conclude that they altered the conditions of the plaintiff's working environment.

     "They involved virulent racial slurs, comments, and graffiti" and included a dead fish left on the desk of an African American officer, and the windows of cars of black officers were shot at with BBs. “Taken together, the plaintiff has described an environment that a reasonable person would find hostile or abusive.” Jones v. New York City Dept. of Correction, 99 Civ. 10031, 2001 U.S. Dist. Lexis 2669 (S.D.N.Y.).

Religious Discrimination

Federal appeals court sustains the involuntary removal of an employee who refused to counsel homosexual and unmarried domestic partners for religious reasons.  Accommodation would cause a hardship in a small office; $2,058,738 verdict reversed.

     The Fifth Circuit has held that management does not have to adjust assignments in a small office to accommodate the religious preferences of an employee who objected to counseling certain persons because of their lifestyle.  Although not a public safety case, the decision affects those who counsel inmates and crime victims.

     The plaintiff was hired to provide domestic advice to couples, but she objected to assisting clients who are homosexual or are unmarried partners.  She sued the medical center that employed her in federal court.

     A sympathetic jury awarded her $32,738 in back pay, $326,000 in compensatory damages and $1,700,000 in punitive damages.  The trial judge reduced the damages (under 42 U.S. Code §1981a(b)(3)(D)) to $332,738, and management appealed.

     Requiring one or both co-counselors to assume a disproportionate workload would have created an undue hardship as a matter of law.  Title VII does not require an employer to actually incur accommodation costs; the mere possibility of an adverse impact on co-workers is sufficient to constitute an undue hardship.  Bruff v. No. Miss. Health Serv., #99-60175, 2001 U.S. App. Lexis 4977 (5th Cir.).

Text: laws.findlaw.com/5th/9960175cv0.html

Sick Leave & Abuse

Employer did not need a written attendance policy to terminate an employee for excessive absences, even when discrimination is alleged

     A black female security officer sued for race and gender discrimination, following her termination. She did not dispute missing at least 25 work dates and 7 partial absences in 9 months and 15 before that.

     A federal court rejected her claim that she met her employer's legitimate expectations, because it had no written policy regarding absences.  “Some duties of employees are so obvious that no written policy is necessary. Showing up for work fits this classification.”  Ledet v. Guardsmark, #H-99-3516, 2001 U.S. Dist. Lexis 3051, 84 FEP Cases (BNA) 1703 (S.D.Tex. 2001).

Stress Related Claims and Defenses

Appeals court reinstates an ADA lawsuit of an ex-sergeant who shot up her father’s grave, inflicted wounds on herself, and overdosed on drugs.  Sheriff failed to consider her reemployment for any jobs in the department.

     A sergeant with a Wyoming Sheriff’s Dept. suffered from post-traumatic stress disorder related to childhood sexual abuse by her father.  She fired six rounds her father's grave, made serious self-inflicted wounds and overdosed on drugs, requiring several hospital visits.  When her sick leave expired, she resigned to seek psychological care.

     After a course of medication and therapy, her attending physician, sent the Sheriff a letter stating she could return to work.  Despite her ten years of experience, she was refused employment for any position in the department because of liability concerns.

     The U.S. District Court dismissed her complaint, but an appellate panel has reversed.  Under the EEOC’s interpretive guidelines, if an individual can show that a potential employer refused to hire her based on myth, fear, or stereotype, including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will be “regarded as” disabled. 29 C.F.R. 1630 app. §1630.2(l).

 The Sheriff's refusal to consider her for less sensitive posts, such as process server or jailer, affected her ability to work in an entire class of jobs, not merely in the particular job of patrol officer.  The conclusion that an individual is unqualified because she poses a direct threat must be based on an individualized assessment and a medical judgment. 29 C.F.R. §1630.2(r).

     The plaintiff  “submitted sufficient evidence for a reasonable jury to find that she was qualified for a position within the Sheriff’s Office, that she had a record of impairment or that the defendant regarded her” as impaired.  That “is precisely the kind of dispute traditionally resolved by a jury, not by a court at the summary judgment stage.”  McKenzie v. Dovala, #99-8084, 2001 U.S. App. Lexis 3844, 11 AD Cases (BNA) 936  (10th Cir.).

Text: www.kscourts.org/ca10/

*    *    *    *    *    *

Officer who suffered PTSD from a shooting loses her suit challenging management's decision to temporarily assign her to administrative duties and order a psychological exam.

     In 1993 a suburban police officer shot a suspect. Later, she suffered post traumatic stress disorder and atypical depression with panic attacks. She resumed full duty after counseling, but in 1997 she underwent simulated shooting exercises using videotaped scenarios on a large screen.

     She began crying, had chest pains and difficulty breathing.  She handed her simulation weapon to the range officer, and did not complete the exercise. After an evaluation and temporary staff duty, she again returned to patrol service.

     She filed suit alleging that management violated the ADA and Title VII because of her PTSD and gender.  She complained of being placed on administrative duty and required to take a psychological exam.  She also claimed that she was repeatedly harassed by three officers while on administrative duty.

     The Village said the plaintiff was not disabled or regarded as disabled and suffered no adverse employment action, and was not subjected to a hostile working environment or gender discrimination.  The court noted that there was no evidence that other officers displayed similar reactions or serious emotional outbursts.

     The court found that the Village acted reasonably in placing her on administrative duty with all benefits, promptly arranged a psychological exam for her, and returned her to patrol duty shortly after learning that Davis was fit for duty.

     As for the harassment, she failed to report it and offered no valid reason for not reporting it. The Village was entitled to a summary judgment on all counts.  Davis-Durnil v. Vil. of Carpentersville, #98-C-7618, 128 F.Supp.2d 575, 2001 U.S. Dist. Lexis 918 (N.D. Ill.).

Court site/opinions: www.ilnd.uscourts.gov/

Vacation Pay

Absent limiting language in a bargaining agreement, unused vacation time “sold” back to the city should include incentive and differential pay.

     Because of limits placed on the amount of vacation that may be accrued, a city in California had a vacation buy back provision of up to a maximum of 40 hours each December. The city did not include incentive and other differential pay.

     The union initiated legal proceedings, arguing that because vacation pay includes incentives and differentials when an officer uses it, it should be treated in the same fashion when it is sold.  A three-judge appeals panel agreed.

     The city should have included the pay incentives and differentials in calculating the amount paid in vacation buy backs.  National City Police Officers’ Assn. v. City of National City, #D035158, 2001 Cal. App. Lexis 225 (4th Dist. 2001).

Text: www.courtinfo.ca.gov/opinions

Visual Acuity Standards

Federal court dismisses the ADA claim of a police applicant who lost an eye.

     A former state trooper, who was on permanent disability for the loss of an eye in a vehicular collision, sought full time employment with a small city.  He presently was working as a reserve officer with another community.

     First, the court said he was not disabled within the meaning of the ADA because he was not “substantially limited from working” and the “inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”

     He also was unable to show he was “otherwise qualified” for the job a police officer.  His separation from the Highway Patrol for eyesight disability and continued acceptance of pension benefits, is inconsistent with his claim that he is able to perform the duties of a police officer.  The fact that he was hired as a reserve officer in another city “in no way explains the inconsistency, which is essential for any recovery.”  Rivera v. City of Jacksonville, #7:00-CV-41-F1, unreported (E.D.N.C. 3/2/2001); our ref. file #5580.

*    *    *    *    *    *

 » Research Note: We previously reported [2000 FP 89] that the Supreme Court denied review to an appellate court holding that rejected the ADA claim of a state trooper who was not promoted, after he applied for disability benefits.  Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122, 9 AD Cases (BNA) 1505 (3rd Cir.); cert.den. #99-1395, 2000 U.S. Lexis 2881.

     The appellate panel noted that the plaintiff had previously demonstrated, in his disability claim, that he was so disabled that he could not do essential functions of state trooper job, which precluded recovery under the ADA.

     In a recent case, a federal court has dismissed an ADA claim for repetitive motion injuries, because a former city typist had simultaneously claimed to be (a) disabled, for the purpose of collecting social security disability benefits, and (b) qualified for continued employment with the city.  Lorde v. City of Philadelphia, #98-5267, 2000 U.S. Dist. Lexis 17196 (E.D. Pa.).

Text: www.paed.uscourts.gov/

Wrongful Discharge/Discipline: Damages & Settlements

Appeals court reinstates ADA reinstatement attempt of ex-sergeant who shot up her father's grave, inflicted wounds on herself, and overdosed on drugs.

     A police sergeant was accused of sexual harassment by a subordinate. Distraught by the allegations, he underwent psychiatric treatment on a six-month stress-related disability leave. When the paid disability leave ended he applied for and was granted disability benefits.

     He then sued the city for wrongful termination. He won over $1 million for back wages, loss of future earnings and emotional distress. A three-judge appellate panel has affirmed the award, but said the trial court should have deducted the fair value of his disability pension.

     A wrongful termination verdict must be offset by the value of benefits received and receivable for personal injury against a governmental employer.  Bickford v. City of Seattle,  #42912-4-I, 17 P.3d 1240, 2001 Wash. App. Lexis 210 (Wash. App.).

Text: www.wa.gov/courts/


Handicap/ Abilities Discrimination:  see  Stress Related Claims.
Military Leave:  see  Promotional Rights and Procedures.
Racial Harassment:  see  Hairstyle and Appearance Regulations.
Psychological Exams and Standards:  see  Stress Related Claims (2d case).
Sexual Harassment - Same Gender:  see  Homosexual & Transgender Employee Rights .


“The Legal Risks of Monitoring Employee Conduct,” 89 Illinois Bar Journal 134 (March 2001).

Numbers in [brackets] refer to pages in the print edition

Alexander v. City of Chicago, 994 F.2d 333, 1993 U.S. App. Lexis 11071 (7th Cir. 1993). [54]
Austin v. Owens-Brockway, 78 F.3d 875, 1996 U.S. App. Lexis 4370 (4th Cir. 1996). [52]
Bickford v. City of Seattle, 17 P.3d 1240, 2001 Wash. App. Lexis 210 (Wash. App.). [62-3]
Bruff v. No. Miss. Health Serv., 2001 U.S. App. Lexis 4977 (5th Cir.). [59]
Circuit City Stores v. Adams, #99-1379, 2001 U.S. Lexis 2459. [51-2]
Davis-Durnil v. Vil. of Carpentersville, 128 F.Supp.2d 575 (N.D. Ill. 2001). [60-1]
EEOC v. Waffle House, 193 F.3d 805, 1999 U.S. App. Lexis 24911 (4th Cir.); rev. gtd. #99-1823. [52]
Fink v. City of N.Y., #97-CV-6314, 2001 U.S. Dist. Lexis 2290 (E.D.N.Y.). [57-8]
Fraser v. Nationwide Mut. Insur., #98-CV-6726, 2001 U.S. Dist. Lexis 3241 (E.D.Pa.). [53-4]
Henson v. Pulaski Co. Sheriff Dept., 6 F.3d 531, 1993 U.S. App. Lexis 24937 (8th Cir.). [54]
Hill v. U.S., 751 F.2d 810, 1984 U.S. App. Lexis 16543 (6th Cir. 1984). [54]
Hoffman v. Aaron Kamhi, 927 F.Supp. 640, 1996 U.S. Dist. Lexis 3600 (S.D.N.Y.). [52]
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Jones v. New York City Dept. of Correction, 2001 U.S. Dist. Lexis 2669 (S.D.N.Y.). [58-9]
Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 29 WH Cases (BNA) 1673 (11th Cir. 1990). [54]
Lamon v. City of Shawnee, 972 F.2d 1145, 1992 U.S. App. Lexis 18281 (10th Cir. 1992). [54]
Ledet v. Guardsmark, #H-99-3516, 2001 U.S. Dist. Lexis 3051 (S.D.Tex. 2001). [59-60] 
Lorde v. City of Philadelphia, #98-5267, 2000 U.S. Dist. Lexis 17196 (E.D. Pa.). [64]
McKenzie v. Dovala, #99-8084, 2001 U.S. App. Lexis 3844 (10th Cir.). [60]
Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122 (3rd Cir.). [62]
National City Police Officers’ Assn. v. City of National City, 2001 Cal. App. Lexis 225. [61]
Nuri v. PRC, 13 F.Supp.2d 1296, 1998 U.S. Dist. Lexis 18366 (M.D.Ala.). [54]
Rene v. MGM Grand Hotel, 98-16924, 2001 U.S. App. Lexis 5201 (9th Cir.). [56-7]
Rivera v. City of Jacksonville, #7:00-CV-41- F1, unreported (E.D.N.C. 3/2/2001). [61-2]
Summers v. Howard University, 127 F.Supp.2d 27, 2000 U.S. Dist. Lexis 20210 (D.D.C. 2000). [54]
Swartzentruber v. Gunite Corp., 99 F.Supp.2d 976, 83 FEP Cases (BNA) 181 (N.D. Ind. 2000). [55]
Tiberino v. Spokane Co., 103 Wn.App. 680, 13 P.3d 1104, 2000 Wash. App. Lexis 2474. [53]
Tyrrell v. City of Scranton, 2001 U.S. Dist. Lexis 3419, 2001 WL 223244 (M.D.Pa. 2001). [51]
Warr Acres and Local 2374 IAFF, 115 LA (BNA) 335 (Woolf, 2000). [57]
Zhang v. Mass. Inst. of Techn., 708 N.E.2d 128, 1999 Mass. App. Lexis 385. [54]

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