Some of the case digests do not have a link to the full opinion.
• Cases that have a Lexis or Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration is required, nominal cost.
• Labor arbitration awards can be obtained for a fee, from BNA Plus
• Some of our links are to cases on the FindLaw website. Registration is required; no fees.

Arbitration Punishment Awards – Right of Courts to Interfere

     In a 3-to-1 decision, a N.Y. appellate court sustains an arbitration award upholding the termination of a corrections officer for insubordination. She repeatedly ignored a sergeant’s directive to stop interrupting another employee. A defense that the charges were levied in retaliation for reporting a coworker for assaulting an inmate was rejected. Kowaleski and N.Y.S. Dept. Corr. Srvs., 505383, 2009 N.Y. App. Div. Lexis 2485 (3rd Dept.).

Attorneys’ Fees and Legal Defense Rights

     If an administrative judge decides not to award fees for hours of attorney service that are adequately documented, he/she must identify those hours and give a clear explanation for their elimination. "An appellant is entitled to recover attorney fees for time spent preparing a motion for attorney fees." Wightman v. Dept. of Veterans Affairs, Docket #DE-0752-07-0485-A-1, 2009 MSPB 55, 2009 MSPB Lexis 1845.

Domestic Partner Rights

     Iowa becomes the third state to judicially recognize the right of same-sex couples to marry. Varnum v. Brien, #07–1499, 2009 WL 874044, 2009 Iowa Sup. Lexis 31.

     Maine now authorizes and recognizes same-sex marriages. "An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom," Sec. 2. 19-A MRSA §650-A.

     Vermont enacts a law replacing civil unions for same-sex couples, with full marriage rights. S. 115, an "Act to Protect Religious Freedom and Recognize Equality in Civil Marriage" (2009-2010 Session).

Drug Abuse and Rehabilitation

     Arbitrator concludes that management had just cause to discharge a police officer who tested positive for barbiturates; the grievant’s reliance on the Douglas Factors was misplaced because, under the agency’s "Table of Penalties," the punishment for the first drug offense is removal. D.C. Metro. Police Dept. and FOP, FMCS Case #08/54130-A, 126 LA (BNA) 151 (Evans, 2008).

Free Speech

     Reversing the trial court, the Sixth Circuit reinstates a free speech action brought by a police union official that lost 60 days pay for issuing a seven-page press release critical of the chief. Issuing the press release was outside of the plaintiff’s duties as a police officer, the press release did not disrupt the agency’s effectiveness or impair working relationships. Miller v. City of Canton, #08-3163, 2009 U.S. App. Lexus 8370 (Unpub. 6th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Reversing a summary judgment for the employer in an ADA action, the Eighth circuit holds that reasonable jurors could reject the employer’s claim the plaintiff was terminated for economic considerations and finds that the true reason was that he suffers from a voice condition that limits his ability to speak in a normal or controlled tone, and periodically causes his voice to cut out completely. Willnerd v. First Natl. Nebraska, #07-3316, 558 F.3d 770, 2009 U.S. App. Lexis 5218, 21 AD Cases (BNA) 1164 (8th Cir.).

     County was entitled to a summary judgment in an ADA action, claiming that her superiors wrongfully denied her request for an accommodation. While an inability to drive a car could create a disability if it impaired her of ability to work, she failed to present any evidence that her inability to drive disqualified her from a broad range of jobs. Winsley v. Cook County, #08-2339, 2009 U.S. App. Lexis 8261 (7th Cir.).

Health Insurance & Benefits

     A Pennsylvania city could recover funds spent for an injured officer’s wages and medical expenses from any judgment the officer might collect from a third party. State law did not bar an employer’s right of subrogation. Cole v. City of Wilkes-Barre v. Shiels, #08-1412, 2009 U.S. App. Lexis 8777 (Unpub. 3rd Cir.).

Homosexual & Transgender Employee Rights

     California appellate panel concludes that a petition for change of gender on a person’s California birth certificate under Health and Safety Code sec. 103425 impermissibly denies transgendered individuals who currently live in another state the same right to a revised California birth certificate that is available to California-born transgender individuals who still live in California. Somers v. Superior Court of San Francisco, #A123445, 172 Cal.App.4th 1407, 2009 Cal. App. Lexis 534 (1st Dist.).

     Appellate court sustains the dismissal of a discrimination action filed by a lesbian public employee who complained she was unfairly terminated for absenteeism. She failed to document incidents where heterosexuals were treated less harshly, and only worked 1,109 hours out of a possible 2,080 hours in a 12-month period. Powell v. City of Chicago Human Rights Cmsn., #1-08-0752, 2009 Ill. App. Lexis 137, 105 FEP Cases (BNA) 1577 (1st Dist.).

Impasse Arbitration

     California appellate court strikes down a law imposing mandatory arbitration of wages when bargaining attempts fail. The statute was a second attempt to force the resolution of bargaining disputes by arbitration. Like the first attempt, it contravened a state constitutional provision on home rule. County of Sonoma v. Superior Court (S.C. Law Enforcement Assn., #A122450, 2009 Cal. App. Lexis 620 (1st Dist.), relying on County of Riverside v. Superior Court (Sheriffs’ Assn.), #S107126, 30 Cal.4th 278, 66 P.3d 718 (2003).

National Origin Discrimination

     Federal court rejects the claims brought by a Puerto Rican who claimed that her promotion to captain was delayed for discriminatory reasons. Many other candidates were ahead of her, due to their higher scores on the civil service exam and she failed to identify any specific training opportunities that she was denied. Santiago v. City of N.Y., #05-CV-3668, 2009 U.S. Dist. Lexis 30371 (E.D.N.Y.).

Past Practices, Precedents & Zipper Clauses

     Arbitrator finds that management violated the bargaining agreement by unilaterally implementing a pooled car system and eliminating take-home vehicles, which was a long-standing practice. The Borough also must compensate officers who were affected by the elimination of the take home vehicle policy during the relevant time period. Bor. of West Mifflin and POA, 126 LA (BNA) 139 (Miles, 2008).

     Arbitrator holds that the establishment of a take-home vehicle program that was established by a unilateral employer policy was subject to amendment or rescission by the same process. This is especially true in the absence of the past practice clause. City of Marion and FOP Ohio, 126 LA (BNA) 212, FMCS Case #08-03111 (Fullmer, 2009).

     Although ruling on the admissibility of witness testimony, the California Public Employment Relations Board holds that a city unilaterally modified a recognized past practice concerning the use of take-home vehicles. It had a duty to bargain such changes. AFGE L-117 and City of Torrance, Case #LA-CE-232-M, Decision #2004-M (Cal. PERB, 2009).

Political Activity/Patronage Employment

     In a First Amendment action, a federal court in Manhattan rejects an unlawful dismissal claim of a terminated fire commissioner. A fire commissioner is expected to perform his job duties in response to partisan politics; it is important that a fire commissioner share the political ideology or affiliation of the mayor; and, a fire commissioner exercises policy-making duties in matters such as hiring, instruction, and discipline of employees. A jury’s verdict on the plaintiff’s First Amendment claim must be set aside; the mayor was entitled to judgment as a matter of law. Cicchetti v. Davis, #07 Civ. 10546, 2009 WL 928618, 2009 U.S. Dist. Lexis 29354 [and 6511] (S.D.N.Y.).

Privacy Rights

     Federal court refuses to dismiss a union lawsuit against the Postal Service claiming that management secretly obtained employee medical records directly from doctors and hospitals. Natl. Assn. of Letter Carriers v. U.S. Postal Service, #08 Civ. 458, 2009 U.S. Dist. Lexis 27301 (S.D.N.Y.).

Race Discrimination - In General

     Sixth Circuit rejects a race bias claim brought by a firefighter that had opted out of paramedic training, and then was denied an opportunity to obtain that training later. The city’s refusal was based on fiscal reasons, not bias. Turner v. City of Akron, # 08-3191, 2009 U.S. App. Lexis 6828 (Unpub. 6th Cir.).

Retaliatory Personnel Action

     Federal appellate panel declines to overturn a jury verdict for retaliation. The award was for a former sheriff’s employee who was fired after she exercised her Miranda rights during an internal investigation. Also, the defendants raised a defense of immunity too late to be effective. Hendricks v. Office of the Clermont Co. Sheriff, #06-4431,2009 U.S. App. Lexis 9086 (Unpub. 6th Cir.).

     Reversing the trial court, the Ninth Circuit reinstates a failure to promote action filed by a police officer who claimed that he suffered retaliation because he had filed reports about misconduct and had testified in a class action suit alleging discrimination by his department. Robinson v. York, #07-56312, 2009 U.S. App. Lexis 8844 (9th Cir.).

     Court rejects a former correctional officer’s claim that she was subjected to gender discrimination and retaliation for exercising her First Amendment rights. She failed to allege specific facts revealing an alleged understanding between the union and prison officials to deprive her of her First Amendment rights. Management believed that she was passing information to the attorney of an inmate who had died in the institution. Slater v. Susquehanna County, #3:07-CV-2304, 2009 U.S. Dist. Lexis 27188 (M.D. Pa.).

Retirement Rights and Benefits

     "The receipt of a disability pension is a property right that cannot be diminished without procedural due process. Without notice and without a hearing, the Board unilaterally attempted to modify the disability pension that it had previously awarded to the plaintiff. As a matter of due process, the Board should have provided the plaintiff with notice and an opportunity to be heard before modifying his pension." Kosakowski v. Bd. of Tr. of Calumet City Police Pension Fund, #1-08-1898, 2009 Ill. App. Lexis (1st Dist.).

     Illinois Supreme Court affirms an appellate ruling that held that the benefits paid to the surviving spouse of a police officer are frozen, and are not subject to COLA increases given to retired officers. Village of Roselle v. Roselle Police Pension Bd., #106741, 2009 Ill. Lexis 323. (Unpub. 2009).

Sexual Harassment - In General

     Illinois Supreme Court holds a sheriff’s office liable for damages and legal costs in the case of a records clerk who was sexually harassed by a sheriff’s sergeant, who was not her supervisor. The plaintiff established a hostile working environment. Sangamon Co. Sheriff’s Dept. v. Illinois Human Rights Cmsn., #105517, 2009 Ill. Lexis 378.

Sexual Harassment - Verdicts, Settlements & Indemnity

     Jury awards a LAPD officer $1 million in economic damages, and $1.3 million in non-economic loss, including emotional distress. She alleged discrimination and abuse while assigned to the Valley Traffic Division in 1996, and was retaliated against for reporting the harassment to Internal Affairs. Borck v. City of Los Angeles, #2:99-cv-11575 (C.D. Calif. 2009). In 2008, the city settled a similar claim for $2.25 million. Fuller v. City of Los Angeles, L.A. Co. Super. Ct. #BC346464 (Unpub. 2008).

Uniforms, Clothing and Equipment

     Third Circuit upholds the Philadelphia Police Dept. ban on scarves and other religious headgear. Prohibiting all religious symbols and attire, helps prevent any divisiveness when officers encounter a diverse population. Webb v. City of Philadelphia, #07-3081, 2009 U.S. App. Lexis 7169, 105 FEP Cases (BNA) 1665 (3rd Cir.).

• See the article in the Feb. 2007 AELE Monthly Law Journal: Grooming and Appearance Rules for Public Safety Workers, Part Two - Tattoos, Piercings, Jewelry, Dental Ornamentation, Cosmetics and Religious Headware.

Union and Associational Activity

     Pennsylvania Labor Relations Board notes that while a public employer is required to continue deducting union dues after a bargaining agreement has expired, it is under no obligation to do so if the employees have selected a new bargaining representative. Westmoreland Co. Employees Assn. v. Westmoreland Co., #PERA-C-08-269-W (Pa. PLRB, 2008).

Untruthfulness & Resume Fraud - Resume fraud or job application omissions

     Arbitrator orders reinstatement of a federal prison employee who omitted mention of receiving non-judicial punishment while in the Navy. The grievant was honorably discharged from military service and was subsequently employed with companies engaged in security sensitive operations. Fed. Bur. of Prisons and AFGE L-3969, 126 LA (BNA) 201, FMCS Case #08/54183 (Riker, 2009).

Vehicle Related

     Arbitrator finds that the sheriff did not have just cause to suspend a deputy for eight hours for reckless vehicle operation resulting in $1,997 damage. The grievant was engaged in a high-speed pursuit of a kidnapping suspect when he drove off a sharp drop-off on a deserted country road; the grievant captured the suspect. Marion Co. Sheriff’s Office and FOP Ohio, 126 LA (BNA) 90 (Cohen, 2008).

• Return to the Contents menu.

• Report non-working links here

RESOURCES

    Drug use: Position paper, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies, CATO Institute (2009).

     Ethics: Book, Ethical Standards in the Public Sector, 2nd Edit. (2009). ISBN: 1-60442-062-6. Written for lawyers in public service or who represent public entities. Table of Contents. Order info.

     Former employee litigation: Article, Workplace Defamation Suits on the Rise, National Law Journal (4-13-2009).

     Health insurance: Article, Health-Status Insurance – How Markets Can Provide Health Security, CATO Policy Analysis No. 633 (2009).

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance