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July, 2001 web edition

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Arbitration Procedures
Damages & Remedies
Disciplinary Procedures - General
English Only Rules
First Amendment Related
Free Speech
Personnel Manuals
Race and Sex Discrimination
Statistical Evidence
Stress Related
Telephone & Pager Monitoring
Uniforms, Clothing, Equipment
Article Noted
Cross References
Cases Cited

Arbitration Procedures

D.C. Circuit reaffirms the nationwide validity of compulsory arbitration agreements that apply to employment discrimination cases in all jurisdictions except the 9th Circuit.

     The EEOC has waged a losing battle to convince courts that agreements to arbitrate Title VII claims are unenforceable.  Gilmer v. Interstate, 500 U.S. 20 (1991); Circuit City v. Adams, 2001 U.S. Lexis 2459, 2001 WL 273205 (2001).  The 1st (1998), 2nd (1999) 3rd (1998), 4th (1996), 5th (1991), 6th (1991), 7th (1999), 8th (1997), 10th (1994), 11th (1992) and D.C. Circuits (1997) have upheld such agreements.

     The 9th Circuit is the only federal appellate court to hold that Title VII disputes cannot be resolved by compulsory arbitration agreements.  See 144 F.3d 1182 (9th Cir. 1998).  In light of the Supreme Court's recent decision in Circuit City (which overruled another 9th Circuit case), the 9th Circuit's 1998 opinion is in doubt.

Borg-Warner Protective Services v. EEOC, #00-5094, 245 F.3d 831, 2001 U.S. App. Lexis 6726, 69 L.W. 1672, 85 FEP Cases (BNA) 673 (D.C. Cir. 2001).  The opinion lists the case names and citations for all jurisdictions listed here.

Text: laws.findlaw.com/DC/005094a.html

Damages and Remedies

Supreme Court holds that damages for “front pay” awarded against an employer is not limited by the $300,000 maximum liability for civil rights discrimination claims.

     By a vote of 8-0, the justices sided with a former private sector employee who claimed that male coworkers sabotaged her work and avoided her. She had appealed the $300,000 cap that the 6th Circuit had applied to her case.

     The Court held that workers wronged on the job cannot be limited to $300,000 in “front pay,” which they would have earned had the employer eliminated the mistreatment.  They said there is no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not.

     To distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when it is impractical -- because of continuing hostility between the plaintiff and the employer or co-workers, or because of psychological injuries that the discrimination has caused.

     Court said that the most egregious offenders could be subject to the least sanctions.  The wages and benefits she would have earned, had she been able to continue working at the facility, was estimated at $800,000.   Pollard v. E. I. du Pont de Nemours, #00-763, 2001 U.S. Lexis 4123, 69 U.S.L.W. 4419.

Text: laws.findlaw.com/us/000/00-763.html

Disciplinary Procedures - Delays & Time Limits

For a second time, an appellate court reinstates the punishment for 28 firefighters, although disciplinary action was delayed beyond the period authorized in the bargaining agreement.  In so holding, the court overturned an arbitrator's award that annulled the punishment, because it was contrary to a ``well defined, dominant public policy."

     We previously reported that an appellate court overturned a controversial arbitration award that annulled the punishment of 28 firefighters who drank on duty and made racially offensive remarks on a videotape.  The three-judge panel noted that although the delay between the incident and the punishment was 8 years, public policy required disciplinary action. See our articles at 2000 FP 165-6 and 1999 FP 38-9.

     The Illinois Supreme Court vacated that ruling and ordered reconsideration in light of the U.S. Supreme Court's opinion in Eastern Coal, decided on Nov. 28, 2000.  As we reported in January [2001 FP 3] the U.S. Supreme Court refused to overturn an arbitrator's reinstatement of a two-time drug abuser. The public policy of enforcing arbitral decisions trumped the policy of punishing substance abusers.

     The justices said that awards should not be vacated unless “there exists an explicit, well defined, dominant public policy to which the arbitrator's decision ran contrary.”   Eastern Assoc. Coal Corp. v. United MWA D-17, 121 S.Ct. 462, 2000 U.S. Lexis 8083.

Text: www.supremecourtus.gov/

     On remand, the Illinois appellate court looked to find a ``an explicit, well defined, dominant public policy.''  The three-judge panel wrote:

Here, the arbitrator's award reinstating the discharged firefighters violates the well-established public policy favoring safe and effective fire prevention services in the critical matter of public safety...  The conduct at issue in the present case was recorded on video-tape and reveals public safety workers in an on-going state of intoxication, some participants setting about to perform their duties by way of responding to an alarm for a fire.

Nevertheless, the arbitrator ordered reinstatement and barred all discipline and sanctions without considering the merits of the case. Firefighters have the extraordinary responsibility for carrying out the well- stated public policy of safe and effective fire prevention. Firefighters must be prepared to respond immediately to emergency conditions at all times, and in all weather conditions, whenever the alarm bell in the firehouse sounds.

The panel said unequivocally that “we adhere to our original opinion.”  Chicago Fire Fighters L-2 v. City of Chicago, #1-99- 2647, 2001 Ill. App. Lexis 401 (1st Dist., 2001).

Text: www.state.il.us/court

*    *    *    *    *    *

»  Editor's Note: The Chicago case is one of the first after the U.S. Supreme Court's decision in Eastern Coal.  In a recent Ohio case, a transit worker was fired for violating a zero tolerance policy which subjected safety-sensitive employees to random drug- testing.

     An arbitration panel found that the policy was facially valid and that testing positive was a dischargeable offense, but that the automatic discharge provision conflicted with a “sufficient cause” provision in the bargaining agreement, and ordered reinstatement.

     As occurred in Illinois, a panel of the Ohio Appeals Court concluded that reinstating the employee violated an “explicit, well-defined and dominant public policy” to ensure the safety of the passengers and the public.

     The Ohio Supreme Court has reversed, and said that Ohio has no dominant and well-defined public policy against reinstating and rehabilitating a safety-sensitive employee.  Southwest Ohio Reg. Transit Auth. v. Amal. Transit Union L-627, #00-21, 91 Ohio St.3d 108, 742 N.E.2d 630, 2001 Ohio Lexis 461, 166 LRRM (BNA) 2873 (2001).

Text: ftp.sconet.state.oh.us/Opinions/2001/000021.doc

     Management should routinely argue, at the penalty-enforcement stage of an arbitration proceeding, that as a minimum, reinstatement should be conditioned on a “last chance” mandatory treatment and rehabilitation regimen.  The union, if resourceful, should offer this as a compassionate alternative to termination.

     Under last chance reinstatements, a reinstated worker can be subjected to repeated, standardless testing and immediate, incontestable discharge (if the test was correctly administered and the results were properly confirmed).

English Only Rules

University pays $2.4 million to settle EEOC national origin suit brought on behalf of Spanish-speaking workers.

     A Catholic university in San Antonio, Texas has agreed to pay $1 million in cash to 18 Hispanic housekeepers who were subjected to the institution's English-only rule.  The U.S. Equal Employment Opportunity Commission had filed a class action alleging national origin discrimination in violation of Title VII.

     Although the university has an International language Institute and the student website is in seven foreign languages, management prohibited housekeepers from speaking Spanish in the workplace, including during lunch and break periods.  The EEOC alleged that employees who conversed in Spanish were “subjected to repeated verbal and physical abuse, as well as ethnic slurs.”

     The university also agreed to provide $1.44 million in tuition waivers for use by the class members or a close relative.  EEOC v. University of Incarnate Word, U.S. Dist. Ct. (W.D. Tex.). EEOC's site: www.eeoc.gov

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»  Editor's Note: A federal “policy guidance” that directs state employment agencies and other recipients of DoL funding to adopt methods to ensure access to programs and services by persons who speak little or no English was recently attacked at a House appropriations hearing.

     The Dept. of Labor guidance was issued pursuant to Presidential Executive Order 13166, which required federal agencies to take steps to help persons with limited English proficiency.  See 65 (159) Fed. Reg. 50121-50125 (8/16/2000) discussed in our prior article at 2000 FP 156.

     Rep. Earnest Istook charged that the Executive Order was not legislatively authorized and was based on a strained interpretation of the law.  H.R. 969, introduced this year, would nullify the Order and prohibit funds from being used to “promulgate or enforce any Executive Order that creates an entitlement to services provided in any language other than English.”  Source: 69 Law Week 2729.

First Amendment Related

Although an officer had testified against his superior at a grand jury, his termination was justified because he used excessive force in arresting a suspect while on his off-duty security job.

     A deputy constable in Texas, worked part-time as a store security guard.  While apprehending a shoplifter, he struck the suspect on the head with his gun, and twice sprayed the him in the face with pepper spray.

     The deputy failed to report the incident to the constable or the store manager.   The suspect later complained that he was handcuffed and lying on the floor when the deputy sprayed him with mace the second time. A store official overhead the deputy brag that he needlessly sprayed the suspect a second time.

     The deputy was fired, and filed a suit claiming that because he had testified against the constable in a grand jury inquiry (relating to money received from bail bondsmen -- an unrelated matter) he was fired for exercising his First Amendment rights.

     A federal appeals panel rejected the lawsuit. Although the ex deputy “engaged in activity protected by the First Amendment when he testified before a grand jury investigating corruption in the constable's department, [his] discharge was objectively reasonable ...”

     His subsequent use of excessive force justified his termination and he would have been fired regardless of his grand jury testimony.  Gonzales v. Dallas County, #00-10046, 2001 U.S. App. Lexis 8088, 143 Lab. Cas. (CCH) P59,213 (5th Cir. 2001).

Text: laws.lp.findlaw.com/5th/0010046cv0.html

*    *    *    *    *    *

»  Editor's Note: So-called “mixed motive” cases allow an employer to avoid or minimize liability for making an adverse personnel decision if management can show that the same action would have been taken without a improper or discriminatory motive.

     The Supreme Court's mixed motive decision in Price Waterhouse v. Hopkins, #87-1167, 490 U.S. 228, 109 S.Ct. 1775 (1989), was criticized by many members of Congress.

Text: laws.findlaw.com/us/490/228.html

     The Civil Rights Act of 1991 attempted to partially reverse the holding in the Price Waterhouse case.  A civil rights plaintiff may recover punitive damages against a superior (individually) if it is proved that the defendant engaged in an unlawful practice “with malice or with reckless indifference” to the plaintiff's federally protected rights. Code: 42 U.S.C. §1981a.

Free Speech

Federal appeals court upholds suit brought by corrections officers who were disciplined for “inattentiveness” during training.  They engaged in Bible reading during a gay and lesbian sensitivity program.  Others have not been disciplined for inattention or non-disruptive protests.

     Minnesota correctional officers were treated to a 75 minute training program called “Gays and Lesbians in the Workplace,” during which three officers silently read Bibles.  They were later reprimanded, which made them ineligible for promotion.

     They sued in federal court, alleging an infringement of their rights of free speech, religion, and freedom of conscience, equal protection of the law, and Title VII.  They asked for compensatory damages for humiliation and anguish, plus attorneys' fees.  Two of them also sought promotions with differential backpay.

     A panel of the 8th Circuit held that the way in which management treats gays and lesbians in the workplace “affects the performance of their public duties and is a matter of political and social concern to the general public.”

     The panel disagreed with the state that they were reprimanded for insubordination -- refusing to be trained -- and  not for their nonverbal speech.  They said that “the critical fact” was that other employees have been similarly inattentive at training sessions, but none has ever been disciplined.

     The Bible reading did not disrupt the training session.  It did not adversely affect working relationships among the staff. In a separate opinion, one judge noted:

It is uncontested that there was an entire class of ‘insubordinate’ employees at these training sessions. They were engaged in a variety of activities: sleeping, secular reading materials, and paperwork, along with the plaintiffs who quietly read their Bibles. MCFS supervisors, well aware of the class of ‘insubordinate’ employees, punished only those employees who were engaged in religious reading.

*    *    *    *    *    *

[The] plaintiffs were clearly punished because of the content of their behavior, rather than the behavior itself. This is clearly unconstitutional.

Altman v. Minn. Dept. of Corrections, #00-1168 and 00-1489, 2001 U.S. App. Lexis 10968 (8th Cir.).

Text: caselaw.lp.findlaw.com/data2/circs/8th/001168P.pdf

*    *    *    *    *    *

Appeals court holds that an officer's critical remarks about coworkers was not protected speech, and undermined police morale.

     A St. Louis police officer was suspended 15 days without pay for making comments during a workshop on police brutality and racism that were reported in the press.  One statement was that many Billy Bob tobacco chewing white police officers were recruited from the Boondocks and lack racial sensitivity.

     He sued, alleging infringement of his right of free speech.  The federal district court determined that his comments were personal attacks on fellow officers, and were not protected speech.  Moreover, even if the comments were protected speech, his interest in making such comments did not outweigh management's interest in promoting the harmonious and  efficient operation of the police dept.

     A federal appeals panel affirmed.  Two judges agreed with the trial court that his comments were not protected speech. One judge disagreed and wrote that ``racism in a public agency is inherently a matter of public concern.''

     However, he concurred with the other two judges that the officer's right to speak against police brutality were outweighed by the department's need to maintain harmony and cooperation among its officers.  McLin v. Bd. of Police Cmsnrs., #00-2799, 2001 U.S. App. Lexis 11015 (8th Cir.).

Text: www.ca8.uscourts.gov/index.html

Personnel Manuals

Federal appeals court holds that broad language in an employee manual can cause an employer to be liable under the federal Family and Medical Leave Act, that otherwise would be exempt.

     A private sector employer in Illinois had an employee manual which stated that employees who have worked 1,250 hours or more during the 12 month period “are eligible for Family and Medical Leave.”  The employer challenged a worker's FMLA claim because the firm did not have the statutory minimum of 50 workers within 75 miles of the premises.

     The plaintiff successfully argued that the eligibility language, repeated elsewhere, waived the statutory minimum number of employees requirement under the FMLA.  Under Illinois law (and most other states), employee manuals can create enforceable contracts if the traditional elements of contract are present.

     The Seventh Circuit also held that there was a factual dispute as to whether the employer intended the procedure in the manual to be permissive or mandatory.  Thomas v. Pearle Vision, #00-3681, 2001 U.S. App. Lexis 11063 (7th Cir.).

Text: laws.lp.findlaw.com/7th/003681.html

Race and Sex Discrimination - Disparate Discipline

Federal appeals court affirms verdicts of $900,000 against a county, plus $300,000 in compensatory and $1,350,000 in punitive damages against two county officials, to be divided equally by three white county employees who proved that they had been subjected to disciplinary action because of their race.

     Numerous racial incidents occurred, during 1995 and 1996, in a suburban Atlanta county agency.  Formal charges of discrimination were brought.  A black county official, who headed the EEO office, investigated the complaints.

     Three white county employees were disciplined for “failing to effectively deal with the situation.”  One was discharged and the other two were suspended and demoted.  The County Personnel Board later reduced the discipline to 30-day suspensions.

     The white employees brought a Title VII suit in federal court.  They alleged that disparate discipline was administered to them because of their race.  In addition to suing the county, they named as co-defendants, the black investigator and his white superior.

     The jury returned a verdict for all three plaintiffs. Against the county, the jury awarded them back pay of $10,398, $4,204.00, and $3,679 -- plus compensatory damages in the amount of $425,000 for each plaintiff.

     Against the black EEO investigator, the jury awarded each plaintiff compensatory damages of $50,000 and punitive damages of $225,000. Each plaintiff also recovered similar amounts against a white co-defendant, who was the investigator's superior.

     The court declined to reduce the punitive damages award, but lowered the damages against the county to $300,000 (the statutory maximum against an employer), and entered final judgment.  A three-judge appeals panel has affirmed.

     The panel said there was “sufficient evidence to support the jury verdicts” and that the jury specifically found that the named co-defendants “intentionally discriminated” against each plaintiff, had “acted with malice or reckless indifference to [their] federally protected rights, and ... the race of each [plaintiff] was a substantial or motivating factor ... to discipline [them].”

     Because there was “ample evidence that both [co-defendants] intentionally discriminated against [the plaintiffs] because of their race, nothing more is required to support an award of punitive damages.” The panel refused to lower the amount of punitive damages, saying that the ``awards are not constitutionally excessive.''  Lambert v. Fulton Co., #00-14272, 2001 U.S. App. Lexis 11761 (11th Cir.).

Text: laws.findlaw.com/11th/0014272opn.html

Statistical Evidence

Second Circuit affirms the use of multiple regression analysis in an equal pay sex discrimination trial.

     A New York public employee presented expert statistical evidence that she was paid significantly less than comparable males. The employer argued that she “impermissibly compared herself to a male employee statistical composite, rather than an actual male employee.”

     The appellate court noted that the plaintiff did identify at least one specific higher paid male, whose position was substantially equal to hers.  The panel then said that the “use of statistical analysis was proper to establish gender-based discrimination and to calculate damages.”

     The panel also said, “It is undisputed that multiple regression analysis, which was used by the experts here, is a scientifically valid statistical technique for identifying discrimination.”  Lavin-McEleney v. Marist College, #99-9324, 239 F.3d 476, 2001 U.S. App. Lexis 1503, 84 FEP Cases (BNA) 1761 (2nd Cir.).

Text: www.tourolaw.edu/2ndCircuit

»  Editor's Note: The 8th Circuit has said that statistical evidence derived from small samples has little predictive value and must be disregarded.  Harper v. Trans World Airlines, 525 F.2d 409, at 412 (8th Cir. 1975), cert. den. 429 U.S. 1050 (1977).

     We previously reported an appellate case where a fire district had claimed that a sample of seven women test-takers was simply too small to support a disparate impact finding.  The appellate panel rejected that argument.  See Pietras v. Bd. of Fire Cmsnrs., #98-7334, 180 F.3d 468, 1999 U.S. App. Lexis 13415, 80 FEP Cases (BNA) 307 (2d Cir. 1999), discussed in this publication at 1999 FP 137-8.

Text: www.tourolaw.edu/2ndCircuit

     Regression analysis is a statistical model that estimates the effect of multiple independent variables and is often used in discrimination litigation.  The model examines, for example, an employee's race, age,  gender, education and experience with a single dependent variable (rank, position or salary).  See: Bazemore v. Friday, 478 U.S. 385, at 400 (1986).

     In adverse impact litigation, the EEOC has adopted an 80% benchmark in its Uniform Selection Guidelines. That is, the EEOC will conclude that an adverse impact exists if women or minorities are selected or promoted at a rate less than 80% of others.

     Adverse impact litigation also employs regression analysis, as well as the ``T-test'' method.  See Endres v. Helms, 617 F.Supp. 1260, at 1267 (D.D.C. 1985). The T-test assumes a null hypothesis and examines the relationship between observed data and sampled data.  The null hypothesis presumes that a litigant's status had no effect on his or her employment situation.

     A level of “statistical significance” is often set at 5%. Data is analyzed to determine whether the null hypothesis should be rejected, and if so, the discrimination is presumed to exist.  For further illumination, see “The Strangely Persistent Transposition Fallacy: Why Statistically Significant Evidence of Discrimination May Not Be Significant,” by Kingsley R. Browne, 14 The Labor Lawyer (ABA) 437, Fall 1998 (9,527 words).

Stress Related Claims and Defenses

Kentucky allows PTSD benefits for a police officer who shot a mentally deranged man who assaulted them with a knife.  Pennsylvania disallows similar claims by an officer who endured a long standoff with a mentally disturbed man with a loaded firearm.  The Kentucky officer also was physically assaulted, the Philadelphia officer was not.  A “confrontation with an armed suspect may be anticipated in the course of an officer's duties.”

     In Lexington, Kentucky in 1989, pair of police officers approached a man who was screaming threats in the middle of a street; he turned and attacked them.  The man produced a knife and stabbed one officer.  The other drew her weapon and fired three shots, killing the man.

     Nearly a decade later, the shooting officer began to suffer severe hand tremors and an intolerable level of anxiety.  She was given a disability retirement and applied for worker's comp. benefits.  Initially, the claim was disallowed because of the time period between the event and the disability, and a finding that her psychiatric trauma was not accompanied by physical injuries.

     That holding was reversed by the Compensation Board, and the employer appealed.  An appellate court has affirmed the award, because her stress-related injuries originated with a work-related physical injury.  The claim was not barred by the statute of limitations because of a series of continuing traumas continuing until her disability retirement.

     The appellate panel said that post-traumatic stress disorder syndrome qualifies as a harmful change to the human organism.  Since her “harmful psychiatric, psychological, and stress-related change is traceable to the 1989 assault and subsequent work-related traumatic events, we believe the totality of the evidence also compels a finding of proximate causation.”  Lexington-Fayette Govt. v. West, #1999-CA-002462, 2000 Ky. App. Lexis 109.

Text (fee required): www.lexisone.com/

     In Pennsylvania, however, the Supreme Court unanimously reversed a lower court decision granting a Philadelphia officer benefits for the PTSD he suffered as the result of a six minute stand-off with an armed suspect.

     The officer was angered when all charges against the man were dropped.  He was overcome with severe anxiety and stress, and was convinced he was either going to die or was going to have to kill someone.  Two doctors later diagnosed PTSD.

     The Pennsylvania justices found that the officer's involvement in a standoff with an armed suspect “did not rise to the level of abnormal working conditions for a police officer.” He was “performing the investigatory and patrol functions expected of a law enforcement officer, and a confrontation with an armed suspect may be anticipated in the course of an officer's duties.”  Philadelphia (City of) v. Civil Serv. Cmsn. (Ryder), #55-EAP-1999, 2001 Pa. Lexis 1083.

Text: www.courts.state.pa.us/

      In March we reported that an appellate court in Pennsylvania denied a stress claim to an officer who attended to two officers who were shot.   Rydzewski v. W.C.A.B., (Philadelphia), #856 C.D. 2000, 2001 Pa. Commw. Lexis 16, 767 A.2d 13. See our analysis at 2001 FP 29.

*    *    *    *    *    *

»  Editor's Comment: Police and correction officer associations should press for remedial legislation to overturn court decisions that deny recovery for psychological trauma because officers should “expect” to be confronted by armed assailants.  In addition to revision of the workers' compensation laws, the “Firemens Rule” which prevents recovery against a citizen or business causing the injury, should be repealed in its entirety.

Telephone & Pager Monitoring

Police Chief's warrantless cloning of a pager issued to an officer, without notice of routine or random monitoring, was unlawful under the federal Communications Privacy Act.

     A Michigan police chief erroneously suspected that a detective was assisting drug dealers.  He allegedly authorized the cloning of a duplicate pager and had his pages monitored, without a warrant or the officer's consent.

     The city and the chief were sued in federal court, under the Electronic Communications Privacy Act, 18 U.S.C. §2510-2522.  They sought dismissal under the “ordinary course of business” exception to the statute.

     A divided panel of the 6th Circuit concluded that neither the ordinary course of business exception nor the law enforcement exception applied to these facts.  Both exceptions require that an interception be in the ordinary course of business -- using equipment provided by a communications carrier.  The majority said that while actual consent is not required, “we do hold that monitoring in the ordinary course of business requires notice to the person or persons being monitored.”

     Management did not routinely monitor pagers and had not adopted a policy which informed officers that monitoring of city- issued pagers was possible.  Employees do not consent to monitoring simply by accepting a pager and agreeing not to use it for personal matters.

     Disagreeing with the 7th Circuit, the majority said that governmental entities can be financially liable under the statute.  See Amati v. Woodstock, 176 F.3d 952 (7th Cir. 1999).  The dissenting judge said that the majority disregarded the plain language of the statute ``by imputing a notice requirement into the ordinary course of business and law enforcement tests of the federal wiretapping laws.''  Adams v. City of Battle Creek, #99- 1543, 2001 U.S. App. Lexis 8806, 2001 FED App. 0157P, 69 Law Week 1717 (6th Cir. 5/11/01).

Text: laws.findlaw.com/6th/01a0157p.html

*    *    *    *    *    *

»  Editor's Note: In 1999 the Michigan ACLU sued Battle Creek for preventing two activists from speaking against the cloning incident at a city commission meeting.  The ACLU claimed the city violated their 1st and 14th Amendment rights as well as the Michigan Open Meetings Act.  The mayor had ruled the men were out of order and threatened them with arrest.

     For a discussion of civil liability under the Electronic Communications Privacy Act, see the newly revised DoJ search manual on “Electronic Evidence in Criminal Investigations” at:


Uniforms, Clothing and Equipment

NLRB sustains an arbitrator's ruling that management could enforce its policy of requiring prison employees to wear dress shirts, in spite of an employee’s alleged skin irritation.  The fact that the arbitrator questioned the grievant's attitudes and sincerity, and expressed doubt about his sanity was not grounds for reversal for bias.

     Because of a skin irritation, a Drug Treatment Specialist at a federal correctional institution, started wearing large, untucked, polo-type shirts at work -- rather than the customary dress shirt and tie.

     His supervisor requested documentation from his physician.  Upon receiving the doctor's note, the supervisor asked the employee to wear a dress shirt without a tie, until his skin cleared up.

     The employee filed a grievance which was submitted to arbitration. It was denied. Management did not attempt to institute a new dress code without resorting to the bargaining process.  The arbitrator found that ``the relevant past practice was professional dress, and that the male staff members traditionally wore a dress shirt and tie at work.''

     Mincing no words, the arbitrator also found that the doctor's note submitted by the grievant “cast great doubt on the grievant's credibility, sincerity and mental health.”  Further, the grievant's attitude “indicated a lack of respect for those in authority” and may be the result of a mental condition known as Narcissistic Personality Disorder. [Record at v57 p99].

     The union appealed to the National Labor Relations Board, claiming that the arbitrator displayed bias by diagnosing the grievant with Narcissistic Personality Disorder, by making reference to the grievant's behavior toward authority figures, and by slandering, defaming, and denouncing the grievant in the award.

     The Board agreed that the arbitrator's comments were ``intemperate,'' but did not demonstrate that there was bias or partiality on the part of the arbitrator or that the arbitrator was corrupt or engaged in prejudicial misconduct.

     Moreover, the Union provided no proof that there was a past practice of allowing casual dress, or that the prison implemented a new dress policy.  AFGE L-4044 - Council of Prisons L-33 and Federal Corr. Inst., Three Rivers, Tex., #0-AR-3314, 2001 FLRA Lexis 45, 57 FLRA No. 27, 39 (1914) G.E.R.R. (BNA) 657 (4/30/01).

Text: www.flra.gov/decisions/v57/57-027.html


Arbitration Procedures:  see  Disciplinary Procedures - Delays & Time Limits.
Family & Medical Leave:  see  Personnel Manuals.
Religious Discrimination:  see  Free Speech.
Sex Discrimination - Equal Pay Claims:  see  Statistical Evidence.


     “Stress and coping in police officers,” by Jeffrey Aaron, University of Virginia Medical School, 3 (4) Police Quarterly (ACJS) 438-450; www.sagepub.com

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

Adams v. City of Battle Creek, 2001 U.S. App. Lexis 8806 (6th Cir. 5/11/01). [109-110]
AFGE C/P and Fed. Corr. Inst., 2001 FLRA Lexis 45, 57 FLRA No. 27. [110]
Altman v. Minn. Dept. of Corr., 2001 U.S. App. Lexis 10968 (8th Cir.). [103-4]
Amati v. Woodstock, 176 F.3d 952 (7th Cir. 1999). [109]
Bazemore v. Friday, 478 U.S. 385 (1986). [107]
Borg-Warner Protective Services v. EEOC, 245 F.3d 831 (D.C. Cir. 2001). [99]
Chicago Fire Fighters v. City of Chicago, 2001 Ill. App. Lexis 401. [100-1]
Circuit City v. Adams, 2001 U.S. Lexis 2459, 2001 WL 273205 (2001). [99]
EEOC v. University of Incarnate Word, U.S. Dist. Ct. (W.D. Tex.). [101-2]
Eastern Assoc. Coal v. United MWA D-17, 121 S.Ct. 462 (2000). [100-1]
Endres v. Helms, 617 F.Supp. 1260 (D.D.C. 1985). [107]
Gilmer v. Interstate, 500 U.S. 20 (1991). [99]
Gonzales v. Dallas County, #00-10046, 2001 U.S. App. Lexis 8088 (5th Cir.).  [102-3]
Harper v. Trans World Airlines, 525 F.2d 409 (8th Cir. 1975) (1977). [107]
Lambert v. Fulton Co., #00-14272, 2001 U.S. App. Lexis 11761 (11th Cir.). [105-6]
Lavin-McEleney v. Marist College, #99-9324, 239 F.3d 476 (2nd Cir. 2001). [106]
Lexington-Fayette Govt. v. West, #1999-CA-002462, 2000 Ky. App. Lexis 109.  [107-8]
McLin v. Bd. of Police Cmsnrs., #00-2799, 2001 U.S. App. Lexis 11015 (8th Cir.). [104]
Philadelphia (City of) v. Civil Serv. Cmsn. (Ryder), 2001 Pa. Lexis 1083.  [107-8]
Pietras v. Bd. of Fire Cmsnrs., #98-7334, 180 F.3d 468 (2d Cir. 1999). [107]
Pollard v. E. I. du Pont de Nemours, #00-763, 2001 U.S. Lexis 4123. [99-100]
Price Waterhouse v. Hopkins, #87-1167, 490 U.S. 228, 109 S.Ct. 1775 (1989). [103]
Rydzewski v. W.C.A.B., (Philadelphia), 2001 Pa. Commw. Lexis 16. [108]
Southwest Ohio RTA v. Amal. Transit Un., 742 N.E.2d 630, 2001 Ohio Lexis 461. [101]
Thomas v. Pearle Vision, #00-3681, 2001 U.S. App. Lexis 11063 (7th Cir.). [105]

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