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March, 2001 web edition

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AIDS/HIV Testing
Disciplinary Appeals & Challenges
Disciplinary Hearings
Disciplinary Punishment
Emotional Distress
Free Speech
Fair Labor Standards Act - Canine Officers
Handicap/Abilities Discrimination - Constitutionality
Job Classification Rights
Medical Records
Military Leave
Pay Parity
Political Activity/Patronage Employment
Privacy Rights
Race Discrimination
Sex Discrimination
Stress Related Claims and Defenses
Strikes and Retaliation
Uniforms, Clothing and Equipment
Vehicle Related
Cross References
Cases Cited

AIDS/HIV Testing

Divided Illinois appeals court holds that a hospital may, but need not release the HIV results of a suspect to an injured police officer.

     An Illinois police officer scuffled with a citizen; both were cut.  The officer requested that the hospital disclose the result of the injured citizen's HIV test.  The hospital repeatedly refused to comply with officer's request and he sued.

     Under the state’s AIDS Confidentiality Act (410 ILCS 305/18) the results could have been released.  Written consent of a person tested is not required when that individual may have exposed a law enforcement officer, acting in the line of duty.  The appeals court split 2-to-1; the majority held that there was no legal requirement to release the results.  Bitner v. Pekin Memorial Hospital, #3-00-0180, 2000 Ill. App. Lexis 970.

Text: www.state.il.us/court

Disciplinary Appeals & Challenges

Indiana Supreme Court disallows a disciplined employee to challenge the legality of the disciplinary process through a collateral lawsuit.  The process can be challenged, but not as part of the underlying disciplinary event.

     The Chief of an Indiana police dept. imposed discipline on an officer, who appealed to the city’s Merit Commission.  The officer also sued the Commission, the Chief and others, to prevent a hearing on his appeal, challenging the Chief's right to hold office, the legality of the Commission’s existence and the validity of FOP bargaining agreement.

     The Indiana Supreme Court held that a public employee who has an available administrative remedy must pursue that remedy before being allowed access to the courts.  The justices said that “these matters may be the subject of review sought after any final decision of the Commission but may not be pursued collaterally through this lawsuit.” Turner v. Evansville, #82S05-0008-CV-479, 740 N.E.2d 860, 2001 Ind. Lexis 11 (2001).

Text: www.law.indiana.edu/law/incourts/incourts.html

*    *    *    *    *    *

Delaware Supreme Court disallows a parallel lawsuit claiming a fraudulent termination, where at most, there were procedural defects in the hearing process.

     A Delaware police officer was terminated for using excessive force on a person in custody.  He then filed parallel civil suits in state and federal court alleging that his termination was obtained by fraud, citing various procedural “defects.”  Those actions were unsuccessful; see Bailey v. Wilmington Dept. of Police, 1996 Del. Super. Lexis 435 and 1999 Del. Super. Lexis 567; 1997 U.S. Dist. Lexis 18941 (D.Del.).

     On the appeal of the state court action, the Delaware Supreme Court noted the ex-officer did not claim that the grounds of his dismissal were fictitious or fraudulent; rather, he alleged that the procedure followed by the department was irregular.

     The justices said that procedural defects, even if true, do not constitute “fraud, deceit or misrepresentation.”  If the ex-officer had produced fraudulent evidence of guilt, the decision could have been favorable.  Bailey v. City of Wilmington, #21-2000, 2001 Del. Lexis 4.

Text: courts.state.de.us/supreme/ordsops/list.htm

Disciplinary Hearings

Appeals court rejects an officer's challenge to his termination because he was depressed at the time of the disciplinary hearing.

     An officer who was accused of theft, was being treated for an “adjustment disorder with ... major depression.” His physician certified that the condition prevented him from performing his duties.  An appellate court declined to set aside the termination.  The three-judge panel said his “competency to defend himself at his administrative hearing is akin to competency to stand trial.”

     They noted that he answered his attorney’s questions with full understanding; he remembered details of events years earlier.  He was able to comprehend fully what was going on and to respond appropriately to questions that were asked of him.  Coleman v. Anne Arundel County Police Dept., #2713-1999, 2001 Md. App. Lexis 16.

Text: www.courts.state.md.us/T40/

Disciplinary Punishment

Federal appeals court holds that a disciplinary panel, in assessing punishment, cannot consider prior suspensions when they are still on appeal. Supreme Court to decide this issue.

     The Postal Service sought to remove an employee for a “failure to perform duties in a satisfactory manner,” based on minor misconduct.  Management cited three instances of prior disciplinary action.  On appeal, she argued that the Merit Board improperly considered her prior disciplinary record, which was still on appeal.

     A three-judge appellate panel reversed the termination. They said that “prior disciplinary actions are an important factor when considering whether a particular penalty is reasonable under given circumstances.”  However, a disciplinary panel cannot consider prior conduct which is the subject of an ongoing appeal.

... we hold that, as a matter of law, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits.  To conclude otherwise would risk harming the legitimacy of the reasonable penalty analysis, by allowing the use of unreliable evidence (the ongoing prior disciplinary actions) to support an agency action.

     The Supreme Court has agreed to hear the issue, based on a government appeal. Justice Dept. lawyers claim the appellate decision gives employees an incentive to prolong the proceedings by appeals, to keep their prior conduct from being considered in future disciplinary proceedings.

     The case will be argued in the October 2001 Term of the Court.  Gregory v. U.S. Postal Service, #00-3123, 212 F.3d 1296, 2000 U.S. App. Lexis 10968 (Fed. Cir. 2000), reversing #AT-0752- 98-0261-I-1, 84 M.S.P.R. 619, 1999 MSPB Lexis 1467 (1999); review granted, Sup. Ct. #00-758, 2001 U.S. Lexis 1063.

Text: www.law.emory.edu/fedcircuit

*    *    *    *    *    *

Appeals court sustains a five-day suspension for corrections officers who failed to notice an inmate had escaped.

     Pennsylvania prison regulations require a periodic check of the cells, with a visual confirmation of each inmate. The swing and graveyard shift officers failed to notice an inmate's absence. A bed-check time card also was falsified as to the time.

     A three-judge appellate panel found that a five-day disciplinary suspension was not unfair or excessive.  Bruggeman v. State Civil Serv. Cmsn., #1454 C.D. 2000, 2001 Pa. Commw. Lexis 162, 769 A.2d 549  (2001).

Text: www.courts.state.pa.us/opposting/cwealth/out/1454cd00.pdf

Emotional Distress

Federal appeals court upholds a damage claim for mental injury arising from the harsh treatment of a public employee at the time he was dismissed.  He was forced to clean out his office, under a monitor's supervision, while his subordinates watched the event.

     The plaintiff was summarily fired from his city job as a department head. The new mayor had him escorted by a monitor to remove his personal effects. Employees gathered around, some of whom laughed at him.

     He sued for wrongful termination and emotional distress; the jury awarded $133,100 in damages.  The trial court reduced the verdict to a nominal recovery.  A three-judge appellate panel reversed, saying:

 ... a reasonable juror could conclude that the humiliating office scene would not have occurred if [the plaintiff] had not been summarily terminated. ... a jury could conclude that if he was suspended pending a hearing, he would not have been immediately taken back to his desk and forced to clean out his desk in the presence of his co-workers, without any explanation...

... there was enough evidence to infer that the humiliation he experienced was attributable to the summary nature of the proceedings, rather than to the termination itself. [He] therefore presented sufficient evidence of damages to withstand judgment as a matter of law.

     The case was remanded for recomputation of damages.  Alston v. King, #99-3224, 231 F.3d 383, 2000 U.S. App. Lexis 27428 (7th Cir. 2000).

Text: www.ca7.uscourts.gov/

*    *    *    *    *    *

 »  Research Note: In claims of this sort, the degree of intrusiveness is often important.  The Texas Supreme Court has ruled that having a security guard escort a terminated employee to her car did not constitute “outrageous conduct.”  Wornick v. Casas, 856 S.W.2d 732, 1993 Tex. Lexis 102, 8 IER Cases (BNA) 1058 (Tex. 1993).

Free Speech

Federal appeals panel upholds the firing of a city employee who insisted on adding her personal commentary in an official report, after being told not to do so.  First Amendment does not protect those who advance their personal beliefs in an employer's document.

     An affirmative action officer for a Florida city filed a statistical report that stated that city government was “plagued with racism, glass ceilings for women and brick walls for people of color ... “

     Her superiors ordered her to remove the personal commentary, and to draft a report that focused on the statistical data.  She refused to alter the report substantially; the revision still contained personal commentary that she had been told to remove.  She was fired, and sued in Federal Court.

     The trial court dismissed the action.  A three-judge appellate panel rejected her claim that the report was protected by the First Amendment:

Contrary to [her] perception, her job with the City did not involve utilizing the City's resources to crusade for her personal vision of social justice; her job was to follow her superiors' lawful instructions.  By declining to alter the Affirmative Action Report after she was given a direct order to do so, [she] flatly refused to perform a lawful task within the scope of her duties.  *  *  *

Civil servants cannot cry foul when they attempt to use their government employers as stage dummies, and are then disciplined for it.

     On her race and sex discrimination claim, the panel said that although the subject matter of the dispute involved race and gender discrimination, her termination was not due to either; its was due to “her insistence on including her own conclusions” in a city document against her supervisors' wishes.

Rice-Lamar v. City of Fort Lauderdale, #99-12951, 232 F.3d 836, 2000 U.S. App. Lexis 27912, 84 FEP Cases (BNA) 426, 16 IER Cases (BNA) 1638 (11th Cir. 2000), affirming 54 F.Supp.2d 1137, 1998 U.S. Dist. Lexis 21025.

Text: www.law.emory.edu/11circuit/index.html

Fair Labor Standards Act - Canine Officers

A collective bargaining agreement which required a city to pay K9 officers 17 minutes of straight-time pay per day for at-home dog-care activities was reasonable, in light of other benefits and financial incentives.

     A three-judge federal appeals panel reversed a lower court ruling in favor of the officers. The officers testified that they devoted at least one hour per day, and sometimes more than that, to dog-care activities while off-duty.

     However, the evidence also showed that the city provided them with a take-home cruiser, dog food, veterinary care, kennel services, travel to competitions, and on-duty training days.

     These additional incentives adequately compensated the officers for any time deficiencies.  Moreover, “handlers and their families enjoy a highly trained family pet largely at City expense.”  Brock v. City of Cincinnati, #99-3121, 236 F.3d 793, 2001 U.S. App. Lexis 686, 6 WH Cases2d (BNA) 1197, 2001 FED App. 0021P (6th Cir.).

Court site: pacer.ca6.uscourts.gov/opinions/main.php

Handicap/ Abilities Discrimination - Constitutionality

Supreme Court rules, 5-to-4, that state workers cannot sue their employers under the Americans with Disabilities Act.

     Although the 11th Amendment ruling insulates state agencies from ADA suits by state employees in federal courts, the Supreme Court has consistently held that cities, counties, and other political entities of a state do not have the same immunity.  Board of Tr. of Univ. of Ala. v. Garrett, #99-1240, 2001 U.S. Lexis 1700.

Text: laws.findlaw.com/us/000/99-1240.html

     The justices also declined to review similar holdings by the 7th, 8th and 9th Circuits.   Erickson v. Bd. of Gov. of St. Colleges, 207 F.3d 945, 2000 U.S. App. Lexis 5074, 10 A.D. Cases (BNA) 577 (7th Cir.); review denied, #99-2077 and DeBose v. Nebraska, 186 F.3d 1087, 1999 U.S. App. Lexis 22312, 9 A.D. Cases (BNA) 1295 (8th Cir.); review denied, #99-940 and Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir.); review denied, #99-243, 2001 U.S. Lexis 1703 (2001).

Job Classification Rights

Texas Supreme Court upholds a reclassification of various jobs from sworn officer to civilian.  Changes in status or forced transfers did not breach a duty of good faith.

     A west Texas city notified eight police officers that their duties were to be reclassified as civilian positions. Each could (1) stay in his present position as a civilian or (2) transfer to another police officer position or (3) transfer to an available civilian job in other City agencies.

     Those choosing a civilian position would suffer reduced pay and benefits.  However, those who chose other positions as police officers had to demonstrate minimum physical abilities.  Several officers sued in state court.

     The Texas Supreme Court has rejected their claims that the changes constituted “extreme and outrageous conduct,” entitling the plaintiffs to damages for emotional distress.

     The justices also declined to impose a duty of good faith and fair dealing on government and private employers “in light of the variety of statutes that the Texas Legislature has already enacted to regulate employment relationships.”

     To allow them to recover, would create “a new common-law cause of action” and would subvert the provisions and remedies of existing statutes.  Midland (City of) v. O'Bryant, #97-0954, 18 S.W.3d 209, 2000 Tex. Lexis 64, 43 Tex.Sup.J. 884, 16 IER Cases (BNA) 726.

Text: www.supreme.courts.state.tx.us/scopn.htm

Medical Records

N.J. Supreme Court holds that an examining physician (or management) must tell an applicant (or employee) about a serious unknown condition discovered during a preservice (or post- employment) medical exam.

     Traditionally, physicians and psychologists who perform an examination of a current or prospective employee have a contractual client-provider relationship with the employer. There is no “patient” relationship with the person examined. The question is, what duty does a physician or psychologist have to an employee or applicant if a serious condition is discovered?

     In this case, during the course of a preservice medical examination, physicians discovered X-ray anomalies indicating possible cancer, and noted this in their report to the applicant's employer; no one told the applicant until it was too late.

     The New Jersey Supreme Court split with other jurisdictions and held that despite the absence of a traditional doctor-patient relationship, under ordinary rules of negligence the physician had a duty to conduct a competent examination and to make critical information available to the applicant.  Reed v. Bojarski, #A-63 Sept. Term 1999, 2001 N.J. Lexis 8, 69 U.S. Law Week 1455 (N.J. 1/23/01).

Text: lawlibrary.rutgers.edu/courts/supreme/a-63-99.opn.html

Military Leave

A resignation which was given at the request of his employer, and seniority provisions in the collective bargaining agreement did not deprive a military reservist of his right to reemployment as his prior Sheriff’s Dept. rank, under the Uniformed Services Employment and Reemployment Rights Act.

     A detective who served in the military on leave sought reinstatement to his prior rank.  The county declined because (1) he had signed a letter of resignation (requested by the sheriff) and (2) the bargaining agreement provided he must return as a deputy, without seniority rights.  A civil action was brought in federal court under the Uniformed Services Employment and Re- employment Rights Act of 1994, 38 U.S. Code §4301-4333, and Mich. Laws §35.355.

     The judge noted that the 8th Circuit has held that a general letter of resignation also waives an employee’s rights under the USERRA: Paisley v. Minneapolis 79 F.3d 722/at 725 (8th Cir. 1996) and Smith v. Mo. Pac. Transp., 313 F.2d 676/at 680 (8th Cir. 1963).

     Other Circuits have held, that to exclude statutory protections, a resignation letter must indicate an awareness of one’s rights under the USERRA and an expressed intent to waive them.  Loeb v. Kivo, 169 F.2d 346/at 349 (2nd Cir. 1948) and Sykes v. C&G Rwy., 117 F.3d 287 (5th Cir. 1997).  Michigan is in the 6th Circuit.

     The judge observed that the statute was intended to thwart employers who hand a resignation form to an employee who has opted for military service.  No social or contract interest is served by honoring such “resignations” and enforcing them undercuts the law by allowing employers “to take advantage of the youth and ignorance” of those enlisting in military service.

     The employee clearly expressed an intent to return to the Sheriff’s Department. He signed it only after it was prepared and requested by the Sheriff for “administrative purposes.” The resignation made no mention of the federal right to re- employment.  The judge found, as a matter of law, that the right of re-employment was not waived under the circumstances.

     Moreover, the rights of a veteran cannot be abrogated by a collective bargaining agreement. “Were this the case, the employer could simply contract around provided statutory benefits to returning veterans,” said the court.  Other appellate cases are in agreement: Waltermyer v. ALCOA, 804 F.2d 821 (5th Cir. 1986); Rudisill v. C&O Rwy., 167 F.2d 175/at 178-9 (4th Cir. 1948).

     The court granted summary judgment for the ex-officer and against the county. He was entitled to the relief sought under the statute as a matter of law.  Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 2000 U.S. Dist. Lexis 17418 (W.D. Mich.).

Pay Parity

Maryland appellate court requires a city to arbitrate an impasse over fire-police pay parity.

     Baltimore City objected to impasse arbitration on the issue of pay parity for firefighters.  City lawyers claimed that a parity provision would have a chilling effect on the negotiations of an agreement with the police union.  Piggybacking would impede “the right to free, collective and good faith bargaining.”

     The appellate court panel said that the text of the bargaining statute was clear, and it “clearly encompasses a parity provision.”  Parity with the police “directly addresses the amount of wages to be paid.”  Mayor of Baltimore v. Baltimore City Firefighters L-734, #0181-2000, 2001 Md. App. Lexis 18.

Text: www.courts.state.md.us/T40/

 »  Research Note: The Connecticut Supreme Court struck down a parity clause in Local 1219, I.A.F.F. v. Connecticut Labor Relations Bd., 171 Conn. 342, 370 A.2d 952 (Conn. 1976).  The Maine Supreme Court reached a similar conclusion in Lewistown Firefighters Assn. L-785 v. City of Lewistown, 354 A.2d 154 (Me. 1976).

     Courts in California and New York have upheld parity agreements.  See Banning Teachers Ass'n. v. PERB., 44 Cal.3d 799, 750 P.2d 313, 244 Cal.Rptr. 671 (Cal. 1988); Schenectady v. City Fire Fighters L-28, 85 A.D.2d 116, 448 N.Y.S.2d 806 (1982).

Political Activity/Patronage Employment

A federal jury in Chicago has awarded a suburban police lieutenant $3.5 million in compensatory damages against his city, $8 million in punitive damages against the mayor and $1 million against an ex-chief.

     Another former chief and two others testified that the plaintiff was charged with misappropriating funds after he announced his support for a candidate who unsuccessfully challenged the mayor.

     The jury found that the mayor and the then chief retaliated against him for two years, changing his assignments, shifts and vacation periods.  Comanda v. Vil. of Country Club Hills, Daily Southtown 1/19/2001 (N.D.Ill.).

Court site: www.ilnd.uscourts.gov/

Privacy Rights

     It was not an unlawful invasion of privacy for an organization to allow investigators, key employees and another victim to view a videotape of the sexual assault of the plaintiff, an employee of the organization.

     A civilian food service worker was sexually assaulted by an unidentified man.  The assault was recorded by surveillance cameras.  The worker sued the employer for invasion of privacy, because it allowed various people to view the videotape.

     The employer admitted showing the video to various people in conjunction with the investigation: several were investigators, others were key employees who might be able to identify the perpetrator, and one was another rape victim.

     The trial court granted summary judgment to the employer, holding that the claims were barred by the Workers' Compensation Act and that even if they were not, they failed as a matter of law.

     The Utah Supreme Court affirmed.  The privacy claim failed because the viewings were limited to persons with a legitimate need to see the tape. It was unnecessary to decide whether the Workers' Compensation Act barred her recovery.  Shattuck-Owen v. Snowbird Corp., #981594, 2000 UT 94, 16 P.3d 555, 2000 Utah Lexis 163, 17 IER Cases (BNA) 260.

Text: courtlink.utcourts.gov/

Race Discrimination

Black sheriff's recruit wins $1,467,122 for wrongful termination, after he complained about racial profiling.

     The only black officer in an Oregon sheriff’s dept. with 185 white law enforcement deputies, was fired during his probationary period.  After he reported ethnic attitudes and profiling by co- officers, his new-officer ratings fell.

     The plaintiff claimed he was told to treat minorities more suspiciously than whites.  His termination was allegedly in retaliation for complaining.  Although he had more than four years of service as a sergeant as an U.S. Army criminal investigator and almost two years as a police officer in Portland suburb, his ratings were downgraded to substandard.

     After three weeks of testimony, a jury of eight whites and one black awarded him $850,000 against the county, $250,000 against the sheriff and $52,446 against each of the seven deputies who testified against him at the trial.  Bell v. Clackamas Co., #99-327-JE (D. Ore); verdict rptd. in The New York Times, 2/28/2001, p. A10.

*    *    *    *    *    *

In a discrimination lawsuit, an ex-chief must show that at least a majority of council members voted against his retention for reasons of race. It is not enough to show that an influential council member opposed him for racial reasons.

     When a Florida city had a vacancy in the police dept., the chief balked at hiring a black, which was “strongly supported” by a councilman.  The chief favored an Hispanic, who had police experience as a reserve officer.  Later, the council declined to renew the chief's contract, by a 3-2 vote.

     The ex-chief’s suit for race discrimination was rejected, because the he could not show that a majority of the council acted for racial reasons.  The Eleventh Circuit affirmed, 3-to-0; they said:

... the critical issue on appeal is whether the alleged racially discriminatory motive of only one member of a three-member majority of a five-member council can give rise to municipal liability.  We agree with the trial court that it does not. ... there can be no municipal liability unless all three members of the council who voted against reappointing Plaintiff shared the illegal motive.

     Mason v. Vil. of El Portal, #99-15246, 2001 U.S. App. Lexis 1905 (11th Cir.).

Text: laws.lp.findlaw.com/11th/9915246opn.html

Sex Discrimination

Appeals court upholds a punitive damage award of $300,000, and a compensatory award of $275,000, given to a woman former police officer.

     The plaintiff was the first woman police officer employed by a Massachusetts town.  She was a college graduate and had a master’s degree.  She claimed she was subjected to various forms of harassment, was not allowed to fully participate in police officer responsibilities, and was unlawfully terminated, for conduct unbecoming an officer.

     The state’s Commission Against Discrimination ordered her reinstatement. In a parallel action, a state court jury awarded her $275,000 in compensatory and $300,000 in punitive damages.

     A three-judge appellate panel has found that the damages awarded were not excessive and noted that the police chief could have been held  individually liable. The plaintiff also is entitled to reasonable attorney's fees.  Dalrymple v. Town of Winthrop, #98-P-1377, 50 Mass.App.Ct. 611, 740 N.E.2d 204, 2000 Mass. App. Lexis 1038, 84 FEP Cases (BNA) 1559.

Text: www.state.ma.us/courts/courts.htm

Stress Related Claims and Defenses

Appeals court affirms award to whistleblower who suffered anxiety disorder after reporting corrupt practices.

     The N.Y. Workers’ Comp. Board awarded disability benefits to a state auditor for “anxiety disorder, mixed spectrum,” arising for “a continuing course of harassment” for six years following his report of corruption. Among other things, he was permanently assigned to a night shift, although no other accountants work a night shift.

     A four-judge appellate court affirmed the award.  The claimant could not move an arm and leg and had problems with his chest, head and neck.  There was sufficient evidence he had suffered “an accidental injury due to excessive work-related stress.” Abdallah v. N.Y. City, #86031, 719 N.Y.S.2d 198, 2001 N.Y. App. Div. Lexis 248, 2001 NYSlipOp 00250 (3rd Dept. 2001).

Text: www.courts.state.ny.us/reporter/Decisions.htm

Strikes and Retaliation

$45 million award against a union for ignoring a back-to-work order is affirmed.

     The Supreme Court has declined to review a holding of the Fifth Circuit, that affirmed an award of $45.5 million in compensatory damages for civil contempt, after finding that the union and its officers failed to carry out a restraining order mandating that they call off a “sick out.”  American Airlines v. Allied Pilots, 228 F.3d 574, 2000 U.S. App. Lexis 23581, 165 LRRM (BNA) 2449 (5th Cir. 2000); cert. den., #00-1016, 69 Law Week 3574 (2/26/2001).

5th Circuit opinions: www.law.utexas.edu/us5th/us5th.html

Uniforms, Clothing and Equipment

Woman investigator who was disciplined for refusing to wear a necktie settles her claim for $25,000.

     The Milwaukee County Medical Examiner had a rule that male investigators had to wear neckties.  The men filed a grievance, because women investigators were exempted.  An arbitrator sided with the men.

     The Medical Examiner then adopted a dress code which required all investigators, regardless of gender, to wear neckties. Two women filed discrimination complaints with the Wisconsin Equal Rights Division, as a prelude to bring a federal Title VII lawsuit.

     The union negotiated a revised dress code that allows investigators to wear turtlenecks.  The county has settled the complaint brought by one of the female investigators, who had been sent home without pay for noncompliance.

     She is to receive $25,000, back pay for the days she missed and the incident will be purged from her disciplinary record.  Moutry-Allen v. Milwaukee County (Wisc. Equal Rts. Div. 2001).

*    *    *    *    *    *

 »  Research Note: A federal court of appeals has ruled that correctional officers could be required to wear neckties, and management did not have to submit to the bargaining process.  A.F.G.E. L-441 v. F.L.R.A., 864 F.2d 178 (D.C. Cir. 1988).

     Another federal appeals holding, a 10-to-2 en banc decision, rejected a public schoolteacher's challenge, on free speech grounds, of a rule requiring him to wear a necktie.  The majority said he could have verbalized his social views to students without being insubordinate.  E. Hartford Educ. Assn. v. Bd. of Educ., 562 F.2d 838, 1977 U.S. App. Lexis 11916 (2d Cir.), citing Miller v. School Dist., 495 F.2d 658, 664 (7th Cir. 1974).

     Neither decision involved a claim of gender discrimination.

Vehicle Related

Arbitrator imposes a three-day suspension of a police officer who caused a collision by backing through an intersection to respond to a routine call.

     Responding to a non-emergency service call, a police officer backed his vehicle opposite the flow of traffic across an intersection, “extensively” damaging the cruiser and an oncoming car.  After conducting an investigation, management concluded the officer was negligent and violated various traffic laws.  Because he previously had been disciplined for careless driving, the mayor ordered a five day suspension.

     An arbitrator agreed with management that “the grievant ... operated his police vehicle in an extremely careless manner” and in violation of state traffic laws.  The penalty was reduced to three days, because the officer was only negligent and not guilty of conduct unbecoming an officer.  Dormont (Bor. of) and Dormont Police Assn., 115 LA (BNA) 106 (Dean, 2000).


Applicant Rejections:  see  Medical Records.
Hairstyle and Appearance Regulations:  see Uniforms, Clothing and Equipment.
Impasse Arbitration:  see  Pay Parity.
Sex Discrimination:  see Uniforms, Clothing and Equipment.
Telephone Monitoring, Audio & Video Taping:  see  Privacy Rights.
Whistleblower Requirements and Protection:  see  Stress Related Claims.
Workers' Compensation - Claim Validity:  see  Stress Related Claims.
Wrongful Discharge:  see  Emotional Distress.

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

Abdallah v. N.Y. City, #86031, 719 N.Y.S.2d 198, 2001 N.Y. App. Div. Lexis 248 (3rd Dept. 2001). [45]
Alston v. King, #99-3224, 231 F.3d 383, 2000 U.S. App. Lexis 27428 (7th Cir. 2000). [37-8]
American Airlines v. Allied Pilots, 228 F.3d 574 (5th Cir. 2000);
     cert. den., #00-1016, 69 LW 3574 (2001). [45]
A.F.G.E. L-441 v. F.L.R.A., 864 F.2d 178 (D.C. Cir. 1988). [46]
Bailey v. City of Wilmington, #21-2000, 2001 Del. Lexis 4. [35-6]
Banning Teachers Assn. v. PERB., 44 Cal.3d 799, 750 P.2d 313 (Cal. 1988). [42]
Bell v. Clackamas Co., #99-327-JE (D. Ore). [43-4]
Bitner v. Pekin Memorial Hosp., 2000 Ill. App. Lexis 970. [35]
Board of Tr. of Univ. of Ala. v. Garrett, #99-1240, 2001 U.S. Lexis 1700. [39-40]
Brock v. City of Cincinnati, 236 F.3d 793, 2001 U.S. App. Lexis 686 (6th Cir.). [39]
Bruggeman v. State Civil Serv. Cmsn., #1454 C.D. 2000, --- A.2d --- (Pa. Commw. 2001). [37]
Coleman v. Anne Arundel Co. Police Dept., 2001 Md. App. Lexis 16. [36]
Comanda v. Vil. of Country Club Hills (N.D.Ill. 2001). [43]
Dalrymple v. Town of Winthrop, #98-P-1377, 740 N.E.2d 204, 2000 Mass. App. Lexis 1038. [445]
DeBose v. Nebraska, 186 F.3d 1087, 1999 U.S. App. Lexis 22312 (8th Cir.); rev. den., #99-940. [40]
Dormont (Bor. of) and Dormont Police Assn., 115 LA (BNA) 106 (Dean, 2000). [46-7]
E. Hartford Educ. Assn. v. Bd. of Educ., 562 F.2d 838, 1977 U.S. App. Lexis 11916 (2d Cir.). [46]
Erickson v. Bd. of Gov. of St. Col., 207 F.3d 945,
     2000 U.S. App. Lexis 5074 (7th Cir.); rev. den., #99-2077. [40]
Gregory v. U.S. Postal Service,  212 F.3d 1296 (Fed. Cir. 2000);
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Lewistown Firefighters Assn. L-785 v. City of Lewistown, 354 A.2d 154 (Me. 1976). [42]
Local 1219, I.A.F.F. v. Conn. Labor Relns. Bd., 171 Conn. 342, 370 A.2d 952 (Conn. 1976). [42]
Loeb v. Kivo, 169 F.2d 346/at 349 (2nd Cir. 1948). [41]
Mason v. Vil. of El Portal, #99-15246, 2001 U.S. App. Lexis 1905 (11th Cir.). [44]
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Midland (City of) v. O'Bryant, 18 S.W.3d 209, 2000 Tex. Lexis 64. [40]
Miller v. School Dist., 495 F.2d 658, 664 (7th Cir. 1974). [46]
Paisley v. Minneapolis 79 F.3d 722/at 725 (8th Cir. 1996). [41]
Reed v. Bojarski, 2001 N.J. Lexis 8, 69 U.S. Law Week 1455 (N.J. 2001). [40-1]
Rice-Lamar v. Fort Lauderdale, 232 F.3d 836, 2000 U.S. App. Lexis 27912 (11th Cir. 2000). [38-9]
Rudisill v. C&O Rwy., 167 F.2d 175 (4th Cir. 1948). [42]
Turner v. Evansville, 740 N.E.2d 860, 2001 Ind. Lexis 11 (2001). [35]
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Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 2000 Utah Lexis 163. [43]
Smith v. Mo. Pac. Transp., 313 F.2d 676 (8th Cir. 1963). [41]
Sykes v. C&G Rwy., 117 F.3d 287 (5th Cir. 1997). [41]
Waltermyer v. ALCOA, 804 F.2d 821 (5th Cir. 1986). [42]
Wornick v. Casas, 856 S.W.2d 732, 1993 Tex. Lexis 102 (Tex. 1993). [38]
Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 2000 U.S. Dist. Lexis 17418 (W.D. Mich.). [41-2]
Zimmerman v. Oregon DoJ, 170 F.3d 1169 (9th Cir.); rev den, #99-243, 2001 U.S. Lexis 1703 (2001). [40]

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