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Fire and Police Personnel Reporter
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November, 2001 web edition

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Disciplinary Interviews / Compelled Reports
Domestic Partner Rights
Eligibility Lists
Emotional Distress
First Amendment Related
Homosexual / Transgender Job Rights
Privacy Rights
Product Liability
Racial Harassment
Stress Related
Uniforms, Clothing & Equipment
Vacation Pay
Workers' Compensation
Articles Noted
Cross References
Cases Cited


Illinois appeals court holds that complaints of coworker misconduct are absolutely privileged against lawsuits for reputational injuries.

     A state police crime scene technician reported an officer for unnecessary use of force.  Afterwards, other officers supposedly retaliated against him by making false allegations, damaging his reputation. He filed a civil suit in state court for defamation.

     The trial judge found that the officer-defendants made the statements pursuant to a mandatory duty to cooperate in the internal investigation.  Any aspersions about the technician were absolutely privileged against claims of defamation so as to preclude actions for libel or slander.

     A three-judge appellate panel affirmed.  Police officers are obligated to report coworker misconduct and to cooperate with internal investigations.  The defendants’ statements concerning the technician were absolutely privileged.  Busch v. Bates, #5-99-0638, 753 N.E.2d 1184, 2001 Ill. App. Lexis 596.

Text: www.state.il.us/court/Opinions/AppellateCourt/2001/5thDistrict/July/Html/5990638.htm

Disciplinary Interviews & Compelled Reports

Federal appeals court holds that a member of a bargaining unit is entitled to a union rep. during an interview, even if management characterizes the investigation as “criminal” rather than administrative.

     Two Justice Dept. agents interviewed a Bureau of Prisons employee about bringing drugs into a federal correctional facility in Littleton, Colorado.  The employee immediately requested union representation, but the agents denied his request because they said they were conducting a criminal investigation.

     No criminal or disciplinary action resulted, but the union filed an Unfair Labor Practice charge with the Federal Labor Relations Authority.  “Weingarten Rights” have been codified for federal employees.

     An employee who is a member of a bargaining unit is entitled to the presence of a union representative at “any examination in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee and ... requests representation.”  5 U.S. Code §7114(a)(2)(B).

     At the FLRA hearing and later, the DoJ took the view that an employee interview is either criminal or administrative.  If criminal, he is entitled to be represented by an attorney.  If administrative, he is entitled to be represented by a union representative (if a member of a bargaining unit).  DoJ claimed that an employee is not entitled to both if the focus of the inquiry is criminal.

     An Administrative Law Judge disagreed with management and upheld the union's complaint.  On appeal, the FLRA unanimously affirmed and held that the DoJ improperly denied the employee the union representation that he lawfully had requested.  U.S. Dept. of Justice and AFGE L-709, #DE-CA-80076 and WA-CA-80156, 2000 FLRA Lexis 106, 56 FLRA No. 87 (2000).

Text: www.flra.gov/decisions/v56/56-087ac.html

     The Justice Dept. appealed to the Circuit Court.  A three-judge panel affirmed, saying that:

... the difference between administrative and criminal investigations in this respect is one of investigative strategy, not one of law.  ... the Department argues that in a criminal investigation an employee has the right to an attorney and therefore doesn't need a union representative.

But nothing in the language of the statute ... suggests that the application of §7114(a)(2)(B) depends on whether a particular employee “needs” union representation. Moreover, the section implicates the union's rights as well.

     The affirmance by the Circuit Court confirms an order that management will not use the results of the interview to the prejudice of the concerned employee, that investigators must honor the requests of bargaining unit members for representation when interviewed in a disciplinary or criminal investigation, and that notice of the FLRA's decision must be conspicuously posted for 60 consecutive days.  U.S. Dept. of Justice v. FLRA, #00- 1433, 2001 U.S. App. Lexis 21573 (D.C.Cir.).

Text: laws.findlaw.com/dc/001433a.html

*    *    *    *    *    *

 » Editor's Note: No employee is required to give a statement to investigators who (a) work for the same employer and (b) suspect him or her of criminal conduct.  If such a statement was compelled, it cannot be used in a criminal court as an admission of a crime.

     Although the “Garrity Rule” immunizes an employee for the direct use of compelled statements in criminal prosecutions, a few cases have allowed compelled interviews to be used for collateral purposes, such as witness preparation or for discovery purposes.  U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994).

     Last year a federal impasses panel mandated a union-proposed warning for Treasury Dept. employee interviews where criminal wrongdoing is suspected.  Treasury, Bur. of Engrv. v. C-201 NTEU, #99 FSIP 96, 1999 FSIP Lexis 41.  See our article at 2000 FP 52- 3.

     Additionally, management cannot deny an employee’s rights during the interview process by calling in outside investigators -- in an attempt to recast an internal inquiry as an independent or outside investigation.  Calif. Correctional POA v. St. of Calif., #A085064, 82 Cal.App.4th 294, 2000 Cal. App. Lexis 566, 98 Cal.Rptr.2d 302. See our article at 2000 FP 131-3.

*    *    *    *    *    *

New Jersey appeals court affirms reinstatement of an officer who was fired because he declined to answer questions without the assistance of his attorney.  State Criminal Justice guidelines specifically afforded him that right.

     After being offered immunity from criminal prosecution, a New Jersey Sheriff's officer refused to answer questions asked by internal affairs personnel, related to an ongoing criminal investigation, until he could talk with a lawyer.  The meeting was concluded and he was subsequently charged with refusing to answer duty-related questions.

     Prior to the disposition on the charges, he voluntarily appeared with his attorney to reply to the questions he had previously declined to answer. He said that he had never refused to cooperate, but simply wanted to talk to an attorney before answering the questions because he felt intimidated and confused.  He then responded to all of the questions asked by the investigators.

     The Sheriff proceeded with a departmental hearing and the officer was fired.  In a subsequent appeal, an administrative law judge noted that a state Criminal Justice Guideline specified that an officer has the right to obtain an attorney.  He also concluded that officer did not refuse to answer the questions, but only wanted to consult with counsel before responding. He found that the charges should be dismissed and ordered the officer reinstated with back pay.

     The sheriff appealed.  A three-judge appellate panel noted that the officer was not informed that a refusal to answer question would subject him to disciplinary actions.  The detectives should have advised him of his right to counsel at the outset of the questioning.

     The Attorney General’s Guideline provided ten statements that must be read to the officer, including a statement that the officer must answer all questions and that any refusal to respond could result in the officer's dismissal.  It further provides that an officer has the right to consult with a union representative or any other representative of his choice and have the representative present during the interview.

     The panel affirmed the order of reinstatement.  In Matter of William Carroll, #A-1003-99T3, 339 N.J. Super. 429, 772 A.2d 45, 2001 N.J. Super. Lexis 175.

Text available (registration required) at www.lexisone.com

 » Editor's Note: The N.J. Internal Affairs Guideline, revised in Nov. 2000, is on the Internet at: www.state.nj.us/lps/dcj/agguide/internalaffairs2000v12.pdf

at pages 11-36 through 11-43.

Domestic Partner Rights

California overhauls its Domestic Partners Laws.

     The revisions now allow heterosexuals to register where only one of them is over age 62.  Homosexual partners need only be over age 18.  Assembly Bill 25 amended the Civil, Civil Procedure, Family, Government, Health and Safety, Insurance, Probate, Revenue and Taxation and Unemployment Insurance Codes.  It passed by a vote of 42-31 in the Assembly and 23-11 in the Senate; the Governor signed the bill Oct. 14, 2001.

     The amendments allow a registered partner to bring a suit for a partner’s wrongful death; to adopt a partner's child; to receive continued health care coverage of a deceased partner; to make health care decisions for an incapacitated partner; to receive an allowance from the estate of a partner; to jointly purchase real estate; to inherit property from a deceased partner in the same manner as a spouse; to be appointed as administrator of a partner's estate; to receive spousal treatment under personal state income tax laws; to use employee sick leave to attend to an illness of a partner or a partner's child; to collect unemployment benefits when leaving employment to join a domestic partner at a distant location; and to claim disability benefits in the same manner as a spouse.

California Legislative website: www.leginfo.ca.gov/calaw.html

Eligibility Lists

Federal appeals court allows a city to use date and time stamps on applications to break ties between similarly scoring candidates. Practice did not have a disparate impact on race.

     The plaintiff applied for a position as a police officer and scored 92; he was rejected in favor of a white male with the same score who had been waiting longer for appointment, according to civil service tie-breaking rules.

     His suit for race discrimination was dismissed by the trial court.  A three-judge appeals panel affirmed. The evidence could not have supported a jury verdict in plaintiff's favor. The tie- breaking procedure was race neutral.  McCall v. City of Danbury, #00-9324, 2001 U.S. App. Lexis 19158 (Unpub. 2nd Cir.) affirming 116 F.Supp.2d 316, 2000 U.S. Dist. Lexis 15119 (D. Conn.).

Emotional Distress

Federal court refuses to dismiss a suit filed by jailers against the sheriff and others for, without warning, creating a realistic hostage-taking scenario.

     Management at the county jail in Memphis created a training exercise intended to prepare jailers for a hostage situation. Using two probationary officers to play the role of inmates, and unbeknownst to the other jailers, they attempted to “take over” the county jail. The Sheriff's Dept. had trained neither role- player in conducting hostage takeover scenarios.

     After being escorted into the jail, the two role-players entered a control room, shouting and brandishing handguns.  They ordered three jailers to line up against the wall, and pressed handguns to the back of their heads, yelling obscenities.

     They forced one jailer to operate the control panel at gunpoint while others were pushed to the floor, threatened with their life, and kicked.  Jailers outside the control room panicked. The hostage scenario lasted between 20 to 30 minutes. Fifteen of the jailers were sent home, and one required emergency room attention.

     In a subsequent lawsuit, the veteran jailers alleged that they had not received sufficient training for a hostage crisis, were not armed, and were not trained in how to use firearms.  Because gang members in the jail had previously threatened several of the jailers, they feared the invaders were acting on those threats.

     Management argued that an employee's expectations of security and bodily integrity are subject to the risks of the particular workplace.  The court distinguished this situation, because the injuries did not occur as a result of the risks ordinarily associated with their employment duties.  The inmates didn't riot or take the jailers hostage.

     “Instead, the Department initiated a training exercise that was not only perceived as life threatening, but actually put [the jailers] into a life threatening situation.”  The fact that the Sheriff's Dept. is not be liable for injuries caused by an actual inmate uprising, “does not mean that [management] may create such a scenario and be immune from liability.”

     The court found that a jailer's security and bodily integrity interests are diminished because a jail is a dangerous place.  Inmate uprisings and inmates assaulting jailers are not uncommon incidents.  However, the judge said, “although these interests are diminished, the government does not have carte blanche discretion to intrude on those interests.”

     The judge said that management's efforts to create a realistic training exercise “is not per se unreasonable.” Such training “may better prepare jailers mentally and emotionally for an actual uprising.”  However, “a reasonable jury could find that the ... intrusion on [the jailer's] security, bodily integrity, and liberty interests tips the balance in [the jailer's] favor.”

     The length of the exercise was substantial and subjected the jailers to “an intense degree of fear of bodily harm or death...”  Each passing minute “posed a greater risk that bodily harm or death would actually occur.”     The judge said that because the forcible detention -- in a life-threatening situation -- lasted for over twenty minutes, it may be considered unreasonable.  The Court found that the jailers sufficiently alleged facts suggesting that management's actions, “however well-intended, were so intrusive that society would objectively find them unreasonable.”

     As for governmental liability, the jailers alleged that the sheriff, the chief deputy, the asst. chief and the training director “all participated in or at least approved of the plan to conduct the mock training exercise.” The court said alleged facts suggest that the actions were at the behest of the county's decision-makers.

     As for state-based claims of assault by officers outside the control room, the court said that the waving of a gun from one victim to another can constitute an assault on all victims.  Because the role-players pointed their weapons at jailers outside of the control room, “all plaintiffs have sufficiently alleged facts constituting assault” and the defendants’ motion to dismiss those claims was denied.  Humes v. Gilless, #01-2028, 154 F.Supp.2d 1353, 2001 U.S. Dist. Lexis 11233 (W.D. Tenn.).

First Amendment Related

Federal court refuses to dismiss a suit that management punished a police captain because she had testified, under subpoena, on behalf of a subordinate who was indicted for brutality to a suspect.

     A Philadelphia police officer had been twice terminated from the force, twice arrested and once convicted (for shoplifting). He also was “implicated in a number of violent episodes ranging from physical assault to rape.” Eventually he was prosecuted by the Feds for severely beating a criminal suspect in 1993. His captain -- the plaintiff in this case -- testified as a defense witness in the officer's 1998 federal criminal trial.

     The captain sued the city and superiors in Federal Court, claiming that after she testified at the federal trial, she was transferred to night duty and received a 15-day suspension without pay in retaliation for her testimony -- in violation of the First Amendment.

     Although the captain had been subpoenaed to testify, the city suggested that the subpoena was a mere formality, because she had willingly offered her testimony.  The judge noted that the city produced no evidence to suggest that she had volunteered to testify at the trial.

     Even if true, the subpoena “made her willingness irrelevant.” Whether she wanted to testify or not, "she had no choice but to testify or risk court sanctions."  It is the lack of choice, whether or not to testify, that is decisive.

     The judge added that if an officer intentionally lies or is reckless with the truth under oath, the First Amendment interest would be less significant. “But that did not happen here,” he noted -- and concluded that a reasonable jury could find that her testimony was a substantial or motivating factor in her punitive transfer to night duty.  Dooley v. City of Philadelphia, #99-2764, 153 F.Supp.2d 628, 2001 U.S. Dist. Lexis 7437 (E.D. Pa. 2001).

Text: www.paed.uscourts.gov/documents/opinions/01D0443P.HTM

Homosexual & Transgender Employee Rights

New Jersey appellate court upholds employment discrimination lawsuit filed by a discharged transsexual.

     Management was not amused when Carlos became Carla, and ended her services as a pediatrician.  She sued under N.J. state sex discrimination and disability laws.  State legislation prohibiting discrimination against homosexuals or bisexuals do not usually assist transgendered persons, because their homosexuality officially ends after sexual reassignment surgery is successfully completed.

     The federal disability laws specifically exclude transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments and other sexual behavior disorders, 42 U.S. Code §12211(b)(1).

     State disability laws often lack that exclusion, which means that gender identity disorder can be a disability under state law.  Moreover, New Jersey's discrimination laws do not require that a disability must impair a “major life activity,” as does federal law.

     A three-judge appellate panel said that as part of the sexual reassignment protocol “we can infer sufficient impairment of [the] plaintiff's emotional and mental well being to constitute a disability under the [statute].”

     They added that discrimination because of sex is not limited by a person's anatomical gender.  Enriquez v. West Jersey Health Systems, #A-2017-99T5, 777 A.2d 365, 2001 N.J. Super. Lexis 283, 86 FEP Cases (BNA) 197.

 » Research Note: Gender dysphoria is listed in the Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994) or DSM-IV, as a disorder.  A listing is not dispositive for classification as a disability or handicap under federal or state law.

     Courts in Iowa, Kansas, New York and the District of Columbia have concluded that gender discrimination laws in those jurisdictions do not protect transsexuals.  Sommers v. Iowa Civil Rights Cmsn., 337 N.W.2d 470, 474 (Iowa 1983); James v. Ranch Mart Hardware, 881 F.Supp. 478 (D. Kan. 1995); Maffei v. Kolaeton Indus., 164 Misc.2d 547, 626 N.Y.S.2d 391 (Misc. 1995); Underwood v. Archer Mgmt., 857 F.Supp. 96 (D.D.C. 1994).

     Connecticut and Minnesota have interpreted their statutes prohibit discrimination against transsexuals.  Connecticut Cmsn. on Human Rights and Opp., Declaratory Ruling on Behalf of John/Jane Doe (Unpub. 11/9/2000); Goins v. West Group, 619 N.W.2d 424 (Minn. App. 2000).

Further references: “Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality,” 101 Colum. L. Rev. 392 (2001); “Defining Male and Female: Intersexuality and the Collision between Law and Biology,” 41 Ariz. L. Rev. 266 (1999); “Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities,” 48 Hastings L.J. 1363, 1363-68 (1997); and “Treatment of Gender Dysphoria,” 90 Tex. Med. 68-72 (1994).

Moonlighting (Secondary Employment)

Appellate court sustains a 12-month suspension of a police officer who refused to answer pertinent questions because they were learned in his capacity as a private attorney.  Public employees are not free to accept outside work that conflicts with their occupational obligations.

     A three-judge appellate panel noted that “whether an attorney-client privilege exists is of no consequence to the [Police] Board’s determination of whether [an officer] violated the department's rules.”

     The panel said that a “catch 22” situation should not be allowed to occur.  Here, the concerned employee became a police officer prior to becoming an attorney.  The department has a general order reserving the right to restrict secondary employment for good cause.

     The court noted that the policy provides that the “duties and obligations of the Chicago Police Department take priority over any other employment” and that officers  “who engage in secondary employment are reminded that their primary responsibility is to the Chicago Police Department.”

     The panel concluded that any conflict of interest must be resolved in favor of the police dept.  “By swearing to abide by the orders and rules of the Chicago police department, [the] plaintiff agreed that the police department would be his primary employer ... [and] any employment taken on subsequent to his taking this oath obviously became secondary.”

     The decision to suspend the officer for a year without pay was not against the manifest weight of the evidence.  Holden v. Police Bd. of Chicago, #1-00-1117, 55 N.E.2d 67, 2001 Ill. App. Lexis 618.

Text: www.state.il.us/court/Opinions/AppellateCourt/2001/1stDistrict/August/Html/1001117.htm

Privacy Rights

Ohio court rejects the damage claims of a corrections officer who felt humiliated after a photograph of his penis, taken after he broke up a fight, was passed among coworkers.

     The day after he broke up a fight, an Ohio corrections officer requested that the bruises be photographed to document his injuries. Although wearing boxer shorts, he penis was partially exposed in one of the photos, which apparently was viewed by several staff members.

     He sought damages for the invasion of privacy, emotional distress, harassment and the unauthorized disclosure of medical records.  The state's Court of Claims rejected his demands.  The court said that the action of a coworker of showing his photograph to various employees was inappropriate and distasteful but it was not extreme and outrageous -- which are required elements of a valid claim for emotional injuries.

     Secondly, the tort of invasion of privacy requires that (1) there be a disclosure of a public nature, not private; (2) the facts disclosed must be concerning the private life of an individual, not his public life; (3) the matter publicized must be one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the publication must have been made intentionally, not negligently; and (5) the matter publicized must not be a legitimate concern to the public.

     Because the disclosure was non public, the privacy and medical records claims also must fail.  Toth v. Ohio Dept. of Youth Services, #99-09480, 113 Ohio Misc.2d 1, 754 N.E.2d 305, 2001 Ohio Misc. Lexis 11 (Ohio Ct. Claims).

Product Liability

Jury awards $842,000 to a plaintiff with latex glove allergy.  Many other claims in litigation.

     Various federal, state and employer regulations mandate the wearing of protective gloves by paramedics, police and correctional officers and health care workers.  The plaintiff and her husband sued the manufacturers, claiming asthma, rhinitis, hives, contact dermatitis, sore throats, fatigue, headaches, depression and respiratory problems caused by latex exposure.

     The plaintiff had been using latex gloves since 1981, but she was not diagnosed with the allergy until 1994.  The jury found that a breach of implied warranty was a contributing factor in causing her medical problems and that natural latex gloves made by three different manufacturers were defective.  Falcone v. Baxter Healthcare Corp., Court of Common Pleas for Philadelphia Co., Pa. -- Unpublished jury verdict reported in The Legal Intelligencer (Oct. 2, 2001).

*    *    *    *    *    *

 » Editor's Note: Some facilities and public safety agencies are switching to Nitrile gloves, a synthetic material that contains no latex proteins. Although latex gloves are still manufactured, many manufacturers no longer powder the inside of their gloves.

     Latex proteins can bond to the powder and become airborne when the gloves are stretched; breathing latex particles increases the risk of an allergic reaction. Vinyl gloves also became popular, but Nitrile supposedly fits better.

     Courts have made a distinction between type-I and type-IV allergenicity. Type-I, caused by proteins in natural rubber latex, is immediate and systemic. The reactions are immunologic, causing symptoms such as conjunctivitis, rhinitis, urticaria, respiratory distress, and anaphylaxis. Anaphylaxis is a severe reaction, and may be terminal.

     Type-IV allergies result from additive chemicals, and not from natural rubber latex, and does not manifest for 24-48 hours after exposure. The reaction is usually limited to the point of contact; symptoms include pruritus, erythema and blisters.

     Additional litigation (not listed in the print edition of this issue) is:

* Latex Gloves Products Liability Litigation, #97-1694, 152 F.Supp.2d 667, 2001 U.S. Dist. Lexis 4541 (E.D. Pa. 2001) and #97-8084, 134 F.Supp.2d 415, 2001 U.S. Dist. Lexis 2465 (E.D. Pa. 2001).

* Green v. Smith & Nephew, #98-2162, 2001 WI 109, 629 N.W.2d 727, 2001 Wisc. Lexis 439 (2001) -- a products liability claim;

* Morson v. Superior Court (Medline), #D037161, 90 Cal.App.4th 775, 2001 Cal. App. Lexis 542, 109 Cal.Rptr.2d 343 (2001) -- a products liability claim.

* Stockman v. Safe-Skin Corp., #ED77942, 36 S.W.3d 447, 2001 Mo. App. Lexis 181 -- a products liability claim.

* Rabin v. Provident Life Insur., #98-C-1577, 2000 U.S. Dist. Lexis 11554 (N.D. Ill. 2000) -- a disability insurance claim.

* Clark v. Baxter Healthcare Corp., #D034549, 83 Cal.App.4th 1048, 2000 Cal. App. Lexis 747, 100 Cal.Rptr.2d 223 (2000) -- a products liability claim.

* Kozlowski v. W.C.A.B., #1272 C.D. 2000, 764 A.2d 676, 2000 Pa. Commw. Lexis 705 (2000) -- a worker's comp claim.

* Patterson v. Liberty Mutual, #98-P-956, 48 Mass.App. 586, 723 N.E.2d 1005, 2000 Mass. App. Lexis 81 (2000) -- a worker's comp claim.

* Bishop v. Baxter Healthcare Corp., #A97A1113, 227 Ga.App. 201, 489 S.E.2d 323, 1997 Ga. App. Lexis 796 (1997) -- a products liability claim.

* Oliveaux v. Riverside, #29,419, 691 So.2d 340, 1997 La. App. Lexis 877 (1997) -- a worker's comp claim.

* Kennedy v. Baxter Healthcare Corp., #C018845, 43 Cal.App.4th 799, 1996 Cal. App. Lexis 245, 50 Cal.Rptr.2d 736 (1996) -- a products liability claim.

* Bateman v. General Medical Corp., #1423 29 Pa. D.&C.4th 1, 1996 Pa. D.&C. Lexis 30 (1996) -- a products liability claim.

Racial Harassment

Federal court rejects a retaliation claim where a terminated officer had complained of a racist remark by a coworker.

     A corrections deputy was fired for an “antagonistic failure to comply with orders and rules” and for lying about her misconduct.  The Sheriff’s Dept. had a zero tolerance policy on untruthfulness.

     She filed suit, alleging retaliation because she previously had verbally complained about a racist remark by a coworker.  The court dismissed the action, noting that a single remark, which was made outside her presence, did not create a racially hostile work environment or support her claim of retaliation.  Sistruck v. Neuman, #98-8209-CIV, 2000 U.S. Dist. Lexis 14691, 83 FEP Cases (BNA) 1287 (S.D. Fla.).

Uniforms, Clothing and Equipment

Justices refuse to set aside the termination of a police officer who insisted on wearing a cross on his uniform.

     The U.S. Supreme Court has declined to review an appellate court decision that sustained the termination of a Texas police officer who refused to remove a crucifix pin from his uniform.  We discussed the appellate court ruling fully in our May, 200l issue, pp. 76-7.  Daniels v. City of Arlington, #01-187, 2001 U.S. Lexis 9494 (Oct. 9, 2001) affirming 246 F.3d 500, 2001 U.S. App. Lexis 6018 (5th Cir.).

Text: www.ca5.uscourts.gov/opinions/pub/00/00-11191-cv0.htm

(appellate decision)

Stress Related Claims and Defenses

New York allows a malpractice suit against a psychologist or psychiatrist who renders an improper diagnosis, even if they did not examine the employee and acted on the basis of the reports of other psychologists.

     In 1988, a NYC corrections officer was injured in a riot.  In 1997 he stumbled on a loose carpet and was hospitalized for three days. He alleged that the fall recalled memories of the riot, causing severe emotional distress. He was placed on sick leave and never returned to work before being granted permanent disability retirement 11 months later.

     He filed a lawsuit alleging (among other things) that two psychologists or psychiatrists committed medical malpractice because they “failed to use reasonable care and conspired to maliciously and deliberately ignore his condition of total disability.”

     The two health care defendants sought dismissal because the plaintiff was never treated by either -- but only read medical reports from other psychiatrists.  The court responded that if a person has a “professional medical relationship” with a psychologist or psychiatrist, he can maintain a malpractice claim if there was a departure from accepted practice, and evidence that the departure was a proximate cause of the plaintiff's injury or damage.  Torres v. City of N.Y., #99 Civ. 9026, 154 F.Supp.2d 814, 2001 U.S. Dist. Lexis 10978 (S.D.N.Y.).

Untruthfulness & Resume Fraud

Arbitrator sustains the termination of a county employee who, in her job application, omitted the fact that she had resigned from a criminal justice job, while under suspension.

     A county’s Community Justice Dept. improperly accessed state correction's electronic records on her son, an prison inmate.  She resigned, while under suspension, rather than face termination proceedings.

     She later was hired by the county's Health Dept. and on her application failed to list the reason for leaving employment with the Community Justice Dept.  When confronted, she said the omission was an “oversight.”  Management terminated her, and she grieved.

     The arbitrator disagreed, and thought it was a deliberate omission.  She is not qualified to work for an agency that is entrusted with confidential information. “To have an employee who had been terminated ... for misuse of confidential information, would [present] an unacceptable risk.”

     She also minimized, inaccurately, the circumstances leading to her prior resignation.  The grievance was denied.  Multnomah County and M.C. Employees L-88, AFSCME C-75, 115 LA (BNA) 1499 (Calhoun, 2001).

Vacation Pay

California appeals court holds that when public employees sell back unused vacation time, the city also must pay add-on incentive and differential increments.

     Under a bargained agreement between a city and the POA, officers are permitted to sell back up to 40 hours of unused vacation time. The city refused to pay educational incentive pay or differential pay for these periods.

     A federal judge said the exact agreement was conflicting, but there was nothing to suggest any reason why vacation pay that is sold should be treated differently than vacation pay that is used.  When an officer takes time off for vacation, rather than selling back the vacation time, the city pays incentive and differential pay.

     Paying the add-ons is “consistent with the purpose of vacation pay,”  and employees should not be financially penalized when using vacation pay.  National City POA v. City of National City, #D035158, 87 Cal.App.4th 1274, 2001 Cal. App. Lexis 225, 105 Cal.Rptr.2d 237, 167 L.R.R.M. (BNA) 2628 (2001). (Text not on Internet).

Workers' Compensation - Exclusive Remedy

Massachusetts comp. laws barred the claims of a police cadet who quit the academy because of untreated illness, hazing and rigorous regimen.

     While training at the Massachusetts State Police Academy, a cadet caught a severe cold.  Contrary to a physician's advice, she was required to participate in physical activities.  She also claimed she was subjected to hazing and various humiliations -- prompting her resignation.  She sued for damages, alleging constructive discharge and civil rights violations.

     A Superior Court dismissed her claims, and a three-judge appellate panel has affirmed.  They held that claims for emotional or physical injuries because of wrongful termination or constructive discharge are precluded by the state's worker compensation act.

     Although her illness arose from a non-occupational cause, her lawsuit was premised upon allegations that academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication.

     As for the harsh treatment, the panel said there was no legislative or other public policy that precludes a police academy, “a quasi-military training institution, from discharging a cadet who cannot tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all.”

     An academy does not have to face liability because of a cadet's employee's fears for her or his health.  Perkins v. Comm. of Mass., #98-P-1988, 52 Mass. App.Ct. 175, 752 N.E.2d 761, 2001 Mass. App. Lexis 745.

Text: www.masslaw.com/macoa/1115301.htm



     “Correctional employee stress and strain,” and “Examining the health risks for corrections professionals,” 63 (6) Corrections Today 83 and 110 (Oct. 2001), American Correctional Assn., www.aca.org

Medical Records:  see  Privacy Rights.
Religious Discrimination:  see  Uniforms, Clothing and Equipment.


Pages in print edition in [brackets]

Busch v. Bates, #5-99-0638, 753 N.E.2d 1184, 2001 Ill. App. Lexis 596. [163]
Calif. Correctional POA v. St. of Calif., 82 Cal.App.4th 294,
     2000 Cal. App. Lexis 566, 98 Cal.Rptr.2d 302. [165]
Carroll (In Matter of William), 339 N.J. Super. 429, 772 A.2d 45, 2001 N.J. Super. Lexis 175. [165]
Daniels v. City of Arlington, #01-187, 2001 U.S. Lexis 9494 (2001). [173]
Dooley v. City of Philadelphia, #99- 2764, 153 F.Supp.2d 628,
     2001 U.S. Dist. Lexis 7437 (E.D. Pa. 2001). [168-9]
Enriquez v. West Jersey Health Systems, 777 A.2d 365, 2001 N.J. Super. Lexis 283. [169]
Falcone v. Baxter Healthcare Corp., Comm, Pleas Philadelphia Co., Pa. (2001). [171-2]
Goins v. West Group, 619 N.W.2d 424 (Minn. App. 2000). [170]
Holden v. Police Bd. of Chicago, #1-00-1117, 55 N.E.2d 67, 2001 Ill. App. Lexis 618. [170]
Humes v. Gilless, 154 F.Supp.2d 1353, 2001 U.S. Dist. Lexis 11233 (W.D. Tenn.). [166-8]
James v. Ranch Mart Hardware, 881 F.Supp. 478 (D. Kan. 1995). [169]
John/Jane Doe, Conn. Cmsn. on Human Rights (Unpub. 11/9/2000). [170]
Maffei v. Kolaeton Indus., 164 Misc.2d 547, 626 N.Y.S.2d 391 (Misc. 1995). [169]
McCall v. City of Danbury, #00-9324, 2001 U.S. App. Lexis 19158 (Unpub. 2nd Cir.). [166]
Multnomah County and M.C. Empl. L-88, 115 LA (BNA) 1499 (Calhoun, 2001). [173-4]
National City POA v. City of N.C., 87 Cal.App.4th 1274, 2001 Cal. App. Lexis 225, 105 Cal.Rptr.2d 237. [174]
Perkins v. Comm. of Mass., 52 Mass. App.Ct. 175, 752 N.E.2d 761, 2001 Mass. App. Lexis 745. [174-5]
Sistruck v. Neuman, 2000 U.S. Dist. Lexis 14691, 83 FEP Cases (BNA) 1287 (S.D. Fla.). [172]
Sommers v. Iowa Civil Rights Cmsn., 337 N.W.2d 470, 474 (Iowa 1983). [169]
Torres v. City of N.Y., 154 F.Supp.2d 814, 2001 U.S. Dist. Lexis 10978 (S.D.N.Y.). [172-3]
Toth v. Ohio Dept. of Youth Services, 754 N.E.2d 305, 2001 Ohio Misc. Lexis 11 (Ohio Ct. Claims). [171]
Treasury, Bur. of Engrv. v. C-201 NTEU, #99 FSIP 96, 1999 FSIP Lexis 41. [163-4]
Underwood v. Archer Mgmt., 857 F.Supp. 96 (D.D.C. 1994). [169]
U.S. Dept. of Justice and AFGE L-709, 2000 FLRA Lexis 106, 56 FLRA No. 87. [163-4]
U.S. Dept. of Justice v. FLRA, #00- 1433, 2001 U.S. App. Lexis 21573 (D.C.Cir.). [163-4]
U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994).  [164]

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