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January, 2001 web edition

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Arbitration Procedures
Collective Bargaining - Duty to Bargain
Disciplinary Investigations
Disciplinary Offenses/Punishment - Sexual Misconduct
Drug Abuse and Rehabilitation - In General
Drug Abuse and Rehabilitation - Prescription Drug Use
Drug Screening and Specimen Testing
Free Speech
Medical Records
Physical Fitness Requirements, Agility Tests and Standards
Privacy Rights
Race Discrimination - In General
Race Discrimination - Disparate Discipline
Race: Reverse Discrimination
Racial Harassment
Residency Requirements
Retaliatory Personnel Action
Untruthfulness & Resume Fraud
Visual Acuity Standards
Whistleblower Requirements and Protection
Website Articles
Cross References
Cases Cited

Arbitration Procedures

Supreme Court refuses to overturn an arbitrator's reinstatement of a two-time drug abuser.  The public policy of enforcing arbitral decisions trumps the policy of punishing substance abusers.

     The grievant worked for a mining company’s road crew, driving heavy vehicles on public highways. He was subject to DoT regulations requiring random drug testing of workers engaged in “safety-sensitive” tasks; 49 C.F.R. § 382.301-5.

     In 1996 he was fired for marijuana use, but an arbitrator reduced the penalty to a one-month suspension without pay and participation in a substance abuse program.  In 1997 he was fired a second time for using marijuana. The arbitrator again reduced the penalty to a three-month suspension, payment of the costs of arbitration, and to agree to a non-appealable separation if he tested positive in the next five years.

     The employer sued in federal court to overturn the award.  The trial court and a three-judge appellate panel declined to do so; 1999 WL 635632.  These courts reasoned that conditional reinstatement did not offend a policy of discouraging drug use.  Employment law decisions by the Supreme Court are rarely unanimous. Here, all the justices reaffirmed the principle that if a bargaining agreement provides that arbitration the decisions are final and binding, the ability to challenge an award will be extremely limited.

     Although DoT regulations require that a person cannot return to a safety-sensitive position without participation in a rehabilitation and random testing program, the DoT left the issue of continued employment to be determined by the provisions of the bargaining agreement.  The grievant did not operate a vehicle while under the influence of marijuana.

     Arbitrators are bound by the authority the parties give them in the CBA.  If they exceed that authority, awards will be vacated on that ground, and not on public policy grounds.  Arbitrators must interpret the agreement and cannot impose their own beliefs of what's right and wrong.

     Employers must not rely on judicial opposition to substance abuse.  If necessary, they must renegotiate their CBAs to provide for mandatory separation.  Eastern Assoc. Coal Corp. v. United MWA D-17, 121 S.Ct. 462, 2000 U.S. Lexis 8083.

Text: supct.law.cornell.edu/supct/html/99-1038.ZS.html

Collective Bargaining - Duty to Bargain

FLRA orders management to reinstate smoking areas in a fire station and to bargain over any changes.

     The Federal Labor Relations Authority has upheld the ruling of an Administrative Law Judge who concluded that management committed an unfair labor practice by unilaterally ending the past practice of permitting employees to smoke inside designated areas of fire stations at an Air Force Base.  See our prior article at 2000 FP 76.

     Management was ordered to reinstate the smoking areas inside fire stations and to negotiate any future changes with the union.  Air Force Mater. Cmd., Wright-Patterson AFB and IAFF L- F88, #CH-CA-70577, 56 FLRA No. 118 (FLRA 2000); prior decision at 1999 FLRA Lexis 259.

Full text: www.flra.gov/decisions/v56/56-118.html

*    *    *    *    *    *

»  Research Note: New York's highest court has ruled that a smoking ban may not be imposed an union employees without bargaining the work rule change with the union.  Newark Valley C.S.D. v. P.E.R.B., 83 N.Y.2d 315, 632 N.E.2d 443, 1994 N.Y. Lexis 281, 1994 WL 94208.  See our article at 1994 FP 125.

Disciplinary Investigations

Federal appeals court reverses a $1.5 million verdict given an NYSP Trooper, who claimed he was unfairly treated during an I-A investigation of his conduct, purportedly in retaliation for his cooperation in an investigation of Troopers in another incident.

     A New York State Trooper had cooperated with an internal affairs investigation involving misconduct by officers in Peekskill, relating to a hit-and-run investigation and coverup.  In a subsequent unrelated off-duty incident he was found asleep behind the wheel of an official car and a smell of alcohol was present.

     A letter of censure was placed in his personnel file and he was transferred from an elite assignment and reduced to his permanent rank of Trooper.

     He sued various members of the NYSP over a “blue wall of silence” and violating his rights under the federal Constitution and New York state law.  He claimed that the NYSP ``conducted an excessive, prolonged and overzealous investigation'' in retaliation for his cooperation in the I-A investigation.

     A federal jury awarded him $500,000 in compensatory damages, and $155,000 in punitive damages.  The judge set aside the verdict, but a second jury awarded him $1.5 million in compensatory damages.  Eventually an appeal was taken.  A three-judge panel reversed; his injury included “ostracism, the alienation of friendships, and the withholding of preferential treatment by fellow police.”

     The panel said that “the law is ineffective to compel friendship or courtesy” and he had no right to treatment that would immunize him from the consequences of his misconduct.  In short, he cannot complain of selective enforcement in disciplinary matters.

     The NYSP’s conduct was reasonable in the light of his conduct. He was parked in an official vehicle, passed out with the engine running, blood on his face and clothes, and bottle of wine in view. When awakened, he was uncooperative and unresponsive; he gave inconsistent and belligerent answers.  Diesel v. Lewisboro, #99-7831, #99-7840, 232 F.3d 92, 2000 U.S. App. Lexis 28528 (2nd Cir.).

Full text: www.tourolaw.edu/2ndCircuit

Disciplinary Offenses/Punishment - Sexual Misconduct

Federal appeals court upholds the punishment of a senior officer for "conduct unbecoming" with a junior officer.  The fellow officer was under his direct command and the relationship was obvious to coworkers and enlisted personnel.

     In a 4-to-1 holding, the Court of Appeals for the Armed Forces has upheld the conviction of an Air Force Lt. Colonel for having an improper relationship with a lieutenant under his command. There was no attempt to hide their feelings about each other, even when in the presence of enlisted personnel.

     When the defendant was advised against the relationship by another officer, he replied, “Yeah, but she would look really good with my dick in her mouth.”

     In his appeal, the defendant noted that there was no regulation prohibiting relationships between officers – “fraternization” regulations apply to relations between an officer and an enlisted service member.  The Court said his conduct was punishable under the general article:

Unbecoming conduct means behavior more serious than slight, and of a material and pronounced character. It means conduct morally unfitting and unworthy, rather than merely inappropriate or unsuitable, misbehavior which is more than opposed to good taste or propriety.

Unprofessional relationships are those ... which result in inappropriate familiarity or create the appearance of favoritism, preferential treatment, or impropriety ... The term ... refers not to any one specific occurrence, but to the totality of the circumstances. ... Whether the contact or association in question is an offense, depends upon the surrounding circumstances.

     The defendant, who now is a commercial pilot, also was convicted on an unrelated charge of disorderly conduct (walking on top of cars in Italy) and fined nearly $11,000.  U.S. v. Rogers, #99-0838, 54 MJ 244, 2000 CAAF Lexis 1200 (CAAF 2000).

Full text: www.armfor.uscourts.gov/opinions/2001Term/99-0838.pdf

* * * * *

Arbitrator conditionally overturns the termination of an Air Force firefighter, who was charged criminally and confessed to having sex with a minor in a public toilet.  The award is subject to a reinstated security clearance.

     A 44-year old federal firefighter was arrested for a felony, having sex with a boy, age 16, in the toilet facility in a public park.  Had the youth been 5 months older, the charge would have been public lewdness.  The court placed him on 7 years probation, with deferred adjudication.

     The Air Force terminated him for sexual assault of a child, citing an adverse effect. Management claimed that other firefighters did not want to work with him, morale was lessened, and the USAF “no longer had trust and confidence in the grievant's judgment.”

     The union disputed these claims.  The chief, the asst. chief and eight firefighters wrote highly complimentary letters about the grievant's work ethic, capability, cooperation, integrity, and dedication.  The arbitrator noted that the job of firefighter presents no threat to national security.  Because it is well known that the grievant is a homosexual, he cannot be blackmailed because of his orientation.

     The arbitrator found that termination was not for just cause and was not in the interest and efficiency of the Air Force.  However, the remedy of reinstatement was postponed, pending a parallel action to revoke his security clearance.  Security adjudications can take 18-24 months.  Hill Air Force Base and AFGE L-1592, FMCS Case #00/07189, 114 LA (BNA) 1670 (Staudohar, 2000).

Drug Abuse and Rehabilitation - In General

Drug Free Workplace law, with a confidential assistance provision, did not protect a lieutenant who admitted marijuana use following a random test, and then began treatment.

     A Mississippi corrections lieutenant, during a random drug screen, submitted a urine sample that smelled of bleach.  During the post-test interview process he admitted using marijuana.

     The DoC had a policy that employees with an addiction or dependence on alcohol or drugs were encouraged to seek assistance and would be confidentially assisted with referrals to substance abuse programs.  The state Employee Appeals Board reinstated the lieutenant with back pay, because management had not allowed him an opportunity to obtain treatment prior to termination.

     An appellate court has reversed, 9-to-1, on the treatment issue.  There was no policy requirement to offer rehabilitation, prior to termination, when a law enforcement employee admits to illegal drug use.

     The purpose of the Drug-Free Workplace Act is to encourage workers to seek rehabilitation, on their own initiative and without fear of the consequences, which the lieutenant did only after making the incriminating disclosure.  Miss. Dept. of Corrections v. Corley, #1999-CC-0261, 769 So.2d 866, 2000 Miss. App. Lexis 478, 16 IER Cases (BNA) 1597.

Full text: www.mslawyer.com/mssc/

Drug Abuse and Rehabilitation - Prescription Drug Use

Utah Supreme Court affirms the termination of a police officer who abused a prescription drug after two suicide attempts.

     A police officer with a history of depression and sleeping difficulty intentionally took a double dose of Ambien, a prescription sleep aid with intoxicating affects.  She repeatedly called the police and fire dispatch centers, said she should blow up the Public Safety Building, and falsely reported a fire.

     A few years earlier she twice attempted suicide by overdosing on Ambien. A Fitness For Duty Evaluation concluded she had a substance abuse problem. Her continued employment was conditioned on her abstinence from substance abuse.  The civil service board fired her, and she appealed.

     The Utah Supreme Court concluded it was not necessary that her conduct was willful, because she intentionally double-dosed the medication.  Her termination was not a disproportionate penalty or inconsistent with the treatment of other officers guilty of similar misconduct.  Kelly v. Salt Lake City, #990530-CA, 2000 UT App 235, 8 P.3d 1048, 2000 Utah App. Lexis 75.

Text: courtlink.utcourts.gov/

Drug Screening and Specimen Testing

Federal appeals court upholds test of officer after an informant said he was using heroin.  His pre-employment consent to surprise drug testing waived any right to complain of “unwarned” testing.

     A Maryland city's only black police officer was fired for heroin use.  He sued the city for conspiracy, defamation, and violations of the 4th Amendment and his substantive due process rights.

     The trial court dismissed the suit.  An appellate panel has affirmed, noting that the Government has a compelling interest in ensuring that law enforcement officers do not use drugs off duty because of the possibility of bribery and blackmail.

     Moreover, the public does not have to risk that armed officers may suffer from impaired perceptions and judgment.  Third, the appellant signed a pre-employment consent to surprise drug testing.

     Finally, reports of the officer's drug use made the search reasonable and therefore not violative of the Fourth Amendment. Carroll v. City of Westminster, #99-1556, 2000 U.S. App. Lexis 29510, 17 IER (BNA) Cases 14  (4th Cir. 2000).

Full text: laws.findlaw.com/4th/991556.html


OSHA's Final Ergonomics Rule takes effect in Jan. 2001. OSHA can fine local governments in 13 states for non compliance.

     The Occupational Safety and Health Administration's final ergonomics standard will apply to all federal agencies and to state and local government agencies in 25 states with OSHA-approved job safety programs.

     In the 25 states where the rule applies state and local employees, 13 require state and local agencies found to be in violation of the plans to pay fines: AK, AZ, CA, CT, HI, IA, KY, MI, MN, NC, OR, VT & WA.

     We previously reported on the controversial rules when in the proposal stage; see 2000 FP 8.  The final rules take effect Jan. 16, 2001; 65 Fed. Reg. 68261 (11/14/00). Several legal challenges to the rule are pending: Natl. Assn. of Mfrs. v. OSHA, D.C. Cir. #00-1473); U.S. Cham. of Commerce v. OSHA (D.C. Cir. #00-1477).

Full text: www.osha-slc.gov/ergonomics-standard/

Free Speech

Federal court upholds a 60-day suspension of a minority police officer who, in a published letter, called the chief a "liar."  He was unable to prove discriminatory bias and the accusation was not protected by the First Amendment.

     The fact that the police chief sent a white officer to a juvenile training school did not justify a black officer's insubordinate behavior.  In a published letter, he accused the chief of untruthfulness, because he believed he was better qualified to attend the course.

     The judge said even if his letter addressed a matter of public concern, the disciplinary action did not violate his First Amendment rights. ``A government employer must have wide discretion in the fulfillment of their public duties, including the right to suspend employees who hinder the effective operation of the business.''  Moorer v. Copley Twp., 98 F.Supp.2d 838, 2000 U.S. Dist. Lexis 3227 (N.D. Ohio).

Medical Records

HHS releases standards for protecting the privacy of medical records and health information maintained by health care providers, hospitals, insurers, and clearinghouses.

     The regulation was mandated by Congress when it failed to pass comprehensive privacy legislation. The new standards limit the nonconsensual use and release of private health information; restrict most disclosure of health information to the minimum needed for the intended purpose; and establish new criminal and civil sanctions for improper use or disclosure.

     Law enforcement will have access to records with an administrative subpoena or summons, and will not have to go to court as some advocates would have liked. The regulations also impact on inmates in jails, detention centers and other correctional facilities.  HHS Standards for Privacy of Individually Identifiable Health Information: 45 Code of Fed. Reg. §160.101-312.

Full text: www.hhs.gov/ocr/hipaa.html

Physical Fitness Requirements, Agility Tests and Standards

Transit authority's police force did not discriminate against women by adopting a requirement that all applicants run 1.5 miles in 12 minutes or less.

     In its second opinion, a federal District Court rejected the claim that such a test has an unlawful disparate impact on women because it excludes about 93% of women applicants.

     If the agency was judicially required to use a lower standard, it ``would become a police force with officers who were a danger to themselves, other officers, and the public at large, who were unable to effectively fight and deter crime.''

     The use of the test was vigorously opposed by the Civil Rights Div. of the U.S. Dept. of Justice. A panel of the Third U.S. Circuit Court of Appeals overturned the first ruling and found that the trial judge had employed the wrong standard for analyzing such claims.  See our articles at 1999 FP 137-8 and 1998 FP 138-140; prior decision at 181 F.3d 478 (3rd Cir. 1999); cert. den. 120 S.Ct. 970 (2000).

     The panel held that employers must show that such job requirements are truly a “business necessity” and represent the “minimum” qualifications that an applicant must have to do the job.

     In the post-remand decision, the senior judge concluded that management had the right to improve its force by raising its standards. “This court will not accept the proposition that employers are ... bound in their hiring by the level of performance of its incumbent work force.''  He refused to accept the demand that the Transit Authority's test should be rejected because it was more rigorous than any other police force in the country -- including the FBI, Secret Service, Philadelphia Police and the New York City transit police force.

     Comparisons to other forces were meaningless because “SEPTA officers are a part of a unique, foot-based patrol [which is] unlike any other transit force.”  On remand, the sole question was “whether or not SEPTA has proven that its ... aerobic capacity standard is the minimum necessary for the successful performance of the job of SEPTA transit police officer.” The judge found that SEPTA clearly met the Third Circuit’s standard.

     “Apprehending perpetrators, deterring crime, assisting fellow officers in emergency situations, and backing up fellow officers are critical components of the job of SEPTA transit police officer.”  Moreover, crime “has been dramatically reduced since implementation of the fitness program.”  v. SEPTA, #97-0593, 2000 U.S. Dist. Lexis 17612, 84 FEP Cases (BNA) 1012 (E.D. Pa. 12/7/2000).

Full text: www.paed.uscourts.gov/opinions/00D0916P.HTM

Privacy Rights

Illinois appellate court rejects a privacy suit filed by an officer who was disciplined for attending a party where minors consumed alcohol.

     An Illinois police officer was suspended for 2 weeks and was placed on 90 days probation for attending a party at which underage drinking took place.  He sued for a violation of the recently enacted Illinois Privacy Act, 820 ILCS 55/5(a), which prohibits an employer from disciplining workers for the use of lawful products while off the premises and during nonworking hours.

     The intent of the law was to prevent discipline for tobacco use.  Without reaching the merits, the trial court dismissed the suit because he failed to comply with the procedural requirements of the Act.  An appellate court has affirmed.  Hampton v. Vil. of Washburn, #4-00-0225, 2000 Ill. App. Lexis 908 (Ill.App. 2000).

Full text: www.state.il.us/court

»  Editor's Note: This case is reported to underscore the importance of including statutory exceptions to new worker protection laws, so to prevent their use to thwart discipline for improper conduct that is not directly related to the intended purposes of the law.

Race Discrimination - In General

Federal court sustains a jury verdict for an officer who lost his position due to race-based transfers.  Judge refuses to issue an injunction for such transfers.

     The PBA in NYC sought equitable relief and damages for 24 officers who were involuntarily transferred because of their race. The city admitted race-based assignments, in the aftermath of the Diallo shooting, because of  “operational needs.” The U.S. District Court found that race-based transfers would lessen community hostility and improve the effectiveness of law enforcement.  See P.B.A. v. City of N.Y., 74 F.Supp.2d 321, 1999 U.S. Dist. Lexis 14428, 80 FEP Cases (BNA) 1701.

     Later a jury found for one of the 24 plaintiffs and awarded him damages.  The jury apparently found that there were no exigent circumstances justifying the transfers and they were not narrowly tailored to respond to such circumstances.

     Injunctive relief was denied because courts are ill-equipped to make personnel decisions.  Management sought to restore community confidence in the police, and the officers who were moved are now eligible for transfer elsewhere.  The one plaintiff who recovered damages had lost his position as a domestic violence officer.  P.B.A. v. City of N.Y., 2000 U.S. Dist. Lexis 15179, 84 FEP Cases (BNA) 462 (S.D.N.Y.).

Race Discrimination - Disparate Discipline

Even if a minority officer, lawfully taking prescription codeine, was unfairly fired for suspected illegal drug use, his suit for disparate treatment must fail if the statistics do not show that a significant number of minorities were terminated for drug abuse.

     A terminated African American NYPD officer sued for race discrimination after he had tested positive for cocaine, during a random drug test.  He claimed he took codeine Tylenol following a tooth extraction.

     The U.S. District Court summarily dismissed the ex-officer's federal claims, noting that  “although a greater number of black officers fail, the overwhelming majority of black officers pass their drug tests.  5,272 were tested from 1990 to 1998, and only 50, or .9%, either failed or refused to take the test.”

     The plaintiff was unable to show that his termination was motivated by race or that the NYPD treated black officers differently from whites.  The statistical evidence did not support a disparate treatment claim.  Bettis v. Safir, 2000 U.S. Dist. Lexis 13285 (S.D.N.Y.).

Race: Reverse Discrimination

Federal court rejects a suit by rejected white police applicants that an entry exam was designed to increase the scores of minority candidates.

     14 years ago, a N.Y. county police dept. agreed to a consent decree to end hiring discrimination against women, black and Hispanic officers.  U.S. v. Suffolk Co., #83-CV-2737 (E.D.N.Y. 1986).  Various white applicants now claim that the 1999 exam was flawed: score “manipulation,” and a failure to assess cognitive abilities, merit and fitness, in violation of the decree.

     The court said at most, the plaintiffs' claim that the exam was designed to generate higher numbers of minority candidates in the top levels of the grading lists.  Those allegations are insufficient to establish that the county was motivated by a desire to adversely affect whites or that the exam had a disparate impact on them.  Carrabus v. Schneider, 119 F.Supp.2d 221, 2000 U.S. Dist. Lexis 15845 (E.D.N.Y.).

Racial Harassment

Federal appeals court upholds $100,000 verdict for a black officer who was repeatedly called a “nigger” by his black supervisor.

     A black corrections supervisor repeatedly addressed a black subordinate officer as “nigger,” or “black boy,” and sometimes referred to the officer's wife, who is white, as “whitey.”  The officer filed a grievance, but the superior continued using racial slurs in addressing him.

     After the grievance, he was permanently reassigned to the facility's most stressful area, a control room called the bubble. A coworker later “testified that the assignment was made in retaliation for [his] filing [the] racial discrimination complaint.”  The officer resigned and sued the county for disparate treatment, retaliation, and hostile work environment. The jury awarded him back pay and $100,000 for emotional damages.  An appellate court has affirmed.

     Noting that in 1998, the U.S. Supreme Court found employer liability in a case of male-on-male sexual harassment, an employer also can be liable for the mistreatment of a black employee by a black supervisor.  The use of racial names clearly indicated the treatment was because of his race.

     As for the damages, the ex-officer took a lower-paying job without health benefits, and both of the family automobiles were repossessed. “The award of damages was reasonable.” Ross v. Douglas Co., #00-2688, 234 F.3d 391, 2000 U.S. App. Lexis 31390, 84 FEP Cases (BNA) 791  (8th Cir.). (8th Cir.).

Full text: ls.wustl.edu/8th.cir/

Residency Requirements

Federal appeals court upholds a requirement that city firefighters live within the home county. Fiscal ties between the two governments provided a rational basis for the rule.

     A Wisconsin city agreed to extend its residency requirements to the county line.  A firefighter sued in federal court because the home he wanted, although in an adjacent county, was closer to work than many neighborhoods in his home county.

     The court denied his requested injunction.  A three-judge appeals panel has affirmed, because there was a rational basis for the county residency requirement.  The city and county funded joint services, such as dispatching, the jail and health services.  Kiel v. City of Kenosha, #00-2651, 2000 U.S. App. Lexis 31314.

Full text: www.ca7.uscourts.gov/

Retaliatory Personnel Action

Ex NYPD officer awarded $1.25 million for retaliation and constructive discharge, after she reported a lieutenant had sexually harassed her.

     A former NYPD officer accused management of retaliating against her after she filed a sexual harassment complaint against a lieutenant.  She alleged she was given undesirable and stigmatizing duties and experienced constant reprimands and suspensions for minor infractions.

     Even after her resignation, she was stopped for a vehicle offense and when she identified herself as a former officer, she was charged with false impersonation of an officer, and held in custody.

     In August, the federal judge dismissed all claims against the police union, but denied the city's motions to dismiss for hostile environment sexual harassment, retaliation and constructive discharge.  Gonzalez v. Bratton, 2000 U.S. Dist. Lexis 12002 (S.D.N.Y.).

     In October, a federal jury awarded her $1.25 million.  They found for the city on the sexual harassment claim, but concluded that superiors had retaliated against her and had forced her to resign.  Verdict reported in the New York Times, Natl. Edit., p. B16 (10/14/2000).

Untruthfulness & Resume Fraud

Washington state appellate court affirms termination of a deputy sheriff who lied to get in a training course helpful to his National Guard service.

     A sheriff's deputy wrote a letter on DEA letterhead without authorization to qualify for a law enforcement slot in a military scuba diving school in Florida.  He falsely told the Undersheriff that he was required to attend the dive course as part of his National Guard obligations.

     In fact, he desired the course to pursue a military assignment. When the truth was learned he was expelled from the course.  The Sheriff's Dept. then terminated him for untruthfulness, which was affirmed by the county's civil service commission.

     A three-judge appellate court has upheld his termination.  The ultimate sanction of dismissal was not arbitrary, capricious.  A law enforcement officer is required to testify in court.  The sheriff acted properly because credibility and integrity are the basic foundations of every police officer.  Kursar v. Whatcom Co., #44585-5-I, 101 Wn. App. 1013, 2000 Wash. App. Lexis 903.

Full text: www.wa.gov/courts/

Visual Acuity Standards

California appellate court reverses a damage verdict for a deputy sheriff applicant, who was rejected for color blindness.

     A deputy sheriff applicant was rejected for failure to pass the POST recommended Farnsworth D-15 color differentiation test.  The county said that his inability to distinguish colors would prevent his performing as a patrol, court, or corrections deputy.

     He sued in state court, raising state and federal disability claims.  A jury awarded him $307,244.  A three-judge appeals panel has reversed.  First, the applicant is not “disabled” or “regarded as” disabled.  There was no evidence that his major life activity of seeing or working was substantially limited by his condition; he just could not pass the POST-recommended color- vision tests.

     “A person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer.”  Diffey v. Riverside Co. Sheriff's Dept., #E024523, 2000 Cal. App. Lexis 868, 101 Cal.Rptr.2d 353.

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

*    *    *    *    *    *

»  Research Note:  Another court has concluded that color blindness is not a disability.  Hoppes v. Comm. of Penna. Fish and Boat Cmsn., 32 F.Supp.2d 770 (M.D.Pa. 1998).  See also, Columbus Civ. Serv. Cmsn. v. McGlove, 1998 Ohio Lexis 2202, 697 N.E.2d 204, which held that a rejected firefighter applicant with 20/100 uncorrected vision was not disabled.

Whistleblower Requirements and Protection

Texas traffic officer who was transferred for low ticket-writing could file a state whistleblower lawsuit complaining of an illegal quota system.

     A motorcycle officer in Texas was threatened with a transfer because of his low activity in writing traffic tickets.  He responded by reporting an allegedly unlawful quota system to the Internal Affairs Division and to an assistant city attorney.

     He was transferred to patrol and filed suit under the Texas whistleblower protection law.  After two appeals, his lawsuit will be heard on the merits.  Austin (City of) v. Ender, #03-00- 00286-CV, 2000 Tex. App. Lexis 6644, 16 IER Cases (BNA) 1432.

Full text: www.courts.state.tx.us/appcourt.htm



     Nine online articles from the IACP annual conference of Police Legal Officers (Nov. 2000) are at www.aele.org/los2000.html

Included are three employment law presentations: “Beyond the lie: the impact of the unethical officer”; “The untruthful officer: a management approach”; and “What’s new in the world of employment law.”

Disciplinary Punishment:  see  Untruthfulness & Resume Fraud.
Drug Abuse and Rehabilitation:  see  Arbitration Procedures.
Drug Screening/Specimen Testing:  see  Race Discrimination - Disparate Discipline
Privacy Rights:  see  Medical Records.
Smoking Rights/Restrictions:  see  Collective Bargaining - Duty to Bargain.
Suicide Related:  see  Drug Abuse & Rehabilitation - Prescription Drug Use.

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

Air Force, Wright-Patterson AFB and IAFF L-F88, 56 FLRA No. 118 (2000). [3-4]
Austin (City of) v. Ender, 2000 Tex. App. Lexis 6644, 16 IER Cases (BNA) 1432. [14-5]
Bettis v. Safir, 2000 U.S. Dist. Lexis 13285 (S.D.N.Y.). [11]
Carrabus v. Schneider, 119 F.Supp.2d 221 (E.D.N.Y. 2000). [11-12]
Carroll v. City of Westminster, 2000 U.S. App. Lexis 29510 (4th Cir. 2000). [7-8]
Columbus Civ. Serv. Cmsn. v. McGlove, 1998 Ohio Lexis 2202, 697 N.E.2d 204. [14]
Diesel v. Lewisboro, 232 F.3d 92, 2000 U.S. App. Lexis 28528 (2nd Cir.). [4-5]
Diffey v. Riverside Co. Sheriff, 2000 Cal. App. Lexis 868, 101 Cal.Rptr.2d 353. [14]
Eastern Assoc. Coal Corp. v. United MWA, 121 S.Ct. 462, 2000 U.S. Lexis 8083. [3]
Gonzalez v. Bratton, 2000 U.S. Dist. Lexis 12002 (S.D.N.Y.). [13]
Hampton v. Vil. of Washburn, #4-00-0225, 2000 Ill. App. Lexis 908 (Ill.App. 2000). [10]
Hill AFB and AFGE L-1592, FMCS Case #00/07189, 114 LA (BNA) 1670 (2000). [6]
Hoppes v. Comm. of Penna. Cmsn., 32 F.Supp.2d 770 (M.D.Pa. 1998). [14]
Kelly v. Salt Lake City, 2000 UT App 235, 8 P.3d 1048, 2000 Utah App. Lexis 75. [7]
Kiel v. City of Kenosha, #00-2651, 2000 U.S. App. Lexis 31314. [12-13]
Kursar v. Whatcom Co., 101 Wn. App. 1013, 2000 Wash. App. Lexis 903. [13-4]
Lanning v. SEPTA, 2000 U.S. Dist. Lexis 17612 (E.D. Pa. 12/7/2000). [9-10]
Miss. Dept. of Corrections v. Corley, 769 So.2d 866, 2000 Miss. App. Lexis 478. [6-7]
Moorer v. Copley Twp., 98 F.Supp.2d 838, 2000 U.S. Dist. Lexis 3227 (N.D. Ohio). [8]
Natl. Assn. of Mfrs. v. OSHA, D.C. Cir. #00-1473). [8]
Newark Valley v. P.E.R.B., 83 N.Y.2d 315, 632 N.E.2d 443, 1994 N.Y. Lexis 281. [4]
P.B.A. v. City of N.Y., 2000 U.S. Dist. Lexis 15179 (S.D.N.Y.). [10-11]
Ross v. Douglas Co., 2000 U.S. App. Lexis 31390 (8th Cir.). [12]
U.S. Cham. of Commerce v. OSHA (D.C. Cir. #00-1477). [8]
U.S. v. Rogers, #99-0838, 54 MJ 244, 2000 CAAF Lexis 1200 (CAAF 2000). [5]


DOL Ergonomics Standard [8]
HHS Standards for Privacy of Individually Identifiable Health Information. [9]

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

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