See “Disciplinary Punishment - Disparate Discipline”
     Ten African-Americans presented evidence sufficient from which to conclude that a Boston Police Department drug testing program, using hair samples, resulted in a disparate impact on the basis of race. The plaintiffs include a former cadet and former officers who were fired after testing positive for cocaine, a current officer who tested positive and underwent rehabilitation as an alternative to termination, and a former applicant whose contingent job offer was revoked after a positive test. Further proceedings will examine whether the test used is reliable or whether it results in too many false positives among African-American test subjects. Also to be examined is whether the drug testing program is job-related and consistent with business necessity. A summary judgment for the defendants on a Title VII race discrimination claim was vacated, and the denial of the plaintiff's motion for partial summary judgment on the prima facie case of disparate impact was reversed. Jones v. City of Boston, #12-2280, 2014 U.S. App. Lexis 8560 (1st Cir.).
     An African-American police officer was terminated after he blew the whistle on a detective and fellow officer in connection with a missing persons investigation he assisted them in, and in which the three of them failed to arrest two suspects or collect certain evidence in what later turned into a murder prosecution. The detective and other officer, both of whom are Caucasian were only recommended for suspension by the same Internal Affairs investigation that resulted in his firing. A jury awarded him $3.5 million on a whistleblowing claim, $2.5 million on as a breach of contract claim, and $500,000 (half compensatory and half punitive damages) on a race discrimination claim for the disparate discipline. An intermediate state appeals court overturned the whistleblowing and contractual awards, while upholding the race discrimination disparate discipline award. The city was protected from the whistleblowing claim by sovereign immunity, since whistleblowing is a tort rather than contract cause of action. As for the contract claim; it was based on statute saying that non-probationary officers can only be fired for cause, the court found that it was not a "contract." Holmes v. Kansas City Bd. of Police Cmsnrs., #WD72852, 364 S.W.3d 615, 2012 Mo. App. Lexis 133.
     A federal appeals court has upheld the invalidation of a requirement that applicants for jobs with the fire department be local residents, agreeing with a finding that it has a disparate impact on African-American applicants. Statistical analysis indicated that the department should employ approximately sixty-five African-American firefighters, but under the residency rule currently employed only two. The department services five municipalities with heavy Hispanic populations. The residency requirement was not supported by a business necessity justification in that it was not linked to the minimum qualifications for firefighter jobs. The NAACP v. N. Hudson Regional Fire & Rescue, #10-3965, 2011 U.S. App. Lexis 24562.
     The cut-off scores used by the City of Chicago on tests for firefighter applicants had a disparate impact on African-American candidates. The city would only hire applicants who scored 89 or higher on the written exam, considering them "highly qualified." Candidates who scored 65 to 88 were deemed qualified, but were unlikely to be hired. In the lawsuit, 132 class members overcame the city's business necessity defense and were awarded damages on the basis of a loss-of-a-chance theory. The U.S. Supreme Court, in the city's appeal, ruled that in disparate-impact litigation the deadline for asserting claims starts again whenever the employer uses a test to make hiring decisions. Lewis v. City of Chicago, #08-974, 130 S. Ct. 2191 (2010). Accordingly, on remand from the Supreme Court, the appeals court found that the charge was timely as to each group of hires other than the first. The court ordered that the trial court's orders be modified to eliminate "any relief based on the hires of May 1996." Lewis v. City of Chicago, o#07-2052, 2011 U.S. App. Lexis 9755, (7th)
     Appellate panel sustains the termination of an untenured black firefighter, who had been arrested six times during his career before he was arrested for a federal felony and fired. "Given the number of arrests and other infractions on [plaintiff's] record and the lack of evidence showing discrimination of any sort, [the plaintiff] cannot show the City and [Chief's] nondiscriminatory reason for his termination was pretextual and that racial animus was the motivating factor for his termination." Chism v. Curtner, #09-2632, 2010 U.S. App. Lexis 18148, 110 FEP Cases (BNA) 292 (8th Cir.).
     Federal court rejects a disparate discipline suit brought by a woman employee. Management had a legitimate, nondiscriminatory reason for imposing discipline. Dempsey v. Delaware Dept. Pub. Sfty., #08-4406, 2009 U.S. App. Lexis 28710 (Unpub. D. Del.).
     Eighth Circuit denies summary judgment on a warden's qualified immunity defense to a black female correctional officer's equal protection violation claim that she was fired for accidentally discharging a burst of pepper spray, a white male officer who sprayed an inmate was not disciplined. "They were involved in similar pepper-spray conduct but were disciplined in different ways. Based on the summary judgment record, [she] established a prima facie case of discrimination." Wimbley v. Cashion, #08-2829, 2009 U.S. App. Lexis 26253, 2009 WL 4348276, 107 FEP Cases (BNA) 1603 (8th Cir.).           Federal court declines to dismiss a race discrimination action brought by a black police officer who was terminated for loss of a firearm. He alleged that Caucasian officers who committed criminal acts and violated departmental policies were only temporarily suspended, rather than terminated. A reasonable jury could find that the chief's different treatment of the plaintiff is evidence that the stated reasons for his termination were pretextual. Hadley v. City of Pine Bluff, #5:08cv00184, 2009 U.S. Dist. Lexis 120253 (E.D. Ark.).
     Fifth Circuit revives a race discrimination lawsuit of a black teacher who was barred from working at a state correctional facility in retaliation for complaining about preferential treatment of a white coworker. She claimed she received disparate punishment for an alleged security lapse (leaving a pager in area accessible to prisoners). Parker v. Louisiana Dept. of Educ., #08-30984, 2009 U.S. App. Lexis 8632, 106 FEP Cases (BNA) 133 (Unpub. 5th Cir.).
     Appellate panels affirms the dismissal of a white officer’s race and age action, following a suspension for failing to assist another officer and his re-assignment to less desirable duties. "While ... discriminatory comments might be sufficient to establish the requisite background circumstances, [the plaintiff] cannot establish a prima facie case of discrimination because ... he cannot show that similarly situated individuals were treated better. Furthermore, the reassignments do not constitute adverse actions." Nagle v. Village of Calumet Park, #07-1157, 2008 U.S. App. Lexis 27145, 105 FEP Cases (BNA) 749 (7th Cir.).
     Any inferences as to race that could have been drawn from a disparate treatment claim were undermined by the plaintiff’s admission that he was suspended for attempting to end an internal investigation inquiring into ticket-fixing allegations. Lightner v. City of Wilmington, #07-1442, 2008 U.S. App. Lexis 22688 (4th Cir.).
       Plaintiff 911 operators failed to show that the coworkers who received lesser punishment had engaged in similar misconduct. Terrell v. City of Harrisburg Police Dept., #06v0787, 549 F.Supp.2d 671, 2008 U.S. Dist. Lexis 34956 (M.D. Pa.).    
     Evidence that white correction officers who engaged in similar misconduct were not disciplined as severely as the plaintiff creates a fact issue as to whether the decision to extend his probationary period and ultimate termination were discriminatory. Hawkins v. Co. of Oneida, #5:04-CV-132, 2007 U.S. Dist. Lexis 53575 (N.D.N.Y.).
     Seventh Circuit affirms a jury verdict in favor of a corrections sergeant that alleged he was disciplined for sexual harassment more severely than white officers. Davis v. Wisc. Dept. of Corrections, #05-1946, 2006 U.S. App. Lexis 10460 (7th Cir. 2006).{N/R}
     Eighth Circuit, in a 2-to-1 holding, denies a new trial in a civil suit brought by a police sergeant against the Board of Police Commissioners alleging that they violated his due process rights and maliciously prosecuted him for excessive force because of his race. Moran v. Clarke, #04-2902, 2006 U.S. App. Lexis 8794 (8th Cir. 2006). {N/R}
     Arbitrator sustains the termination of a firefighter who had been drinking alcohol at home during a hurricane alert, and was unable to report for callback duty. A racial discrimination charge was rejected, because the grievant had been offered a prehearing penalty reduction, which he refused. City of Lauderhill and Metro Broward Prof. Firefighters, 121 LA (BNA) 1035, AAA Case #32-390-00887-04 (Duda, 2005). [2006 FP Feb]
     Ohio appeals court rejects state liability for the termination of a woman probationary trooper, and the reinstatement of a tenured male trooper, after an evening of drinking and consensual sex. Browning v. Ohio Highway Patrol, #02AP-814, 151 Ohio App.3d 798, 2003 Ohio 1108, 2003 Ohio App. Lexis 1051 (10th Dist. Ohio App. 2003). [2003 FP Jun]
     Black former police officer was unable to show that similarly situated non-black employees were treated differently and the city presented legitimate, nondiscriminatory reasons for its decision to terminate him. Henry v. City of Tallahassee, #4:01-cv-62, 216 F.Supp.2d 1299, 2002 U.S. Dist. Lexis 15207, 89 FEP Cases (BNA) 548 (N.D. Fla. 2002). {N/R}
     A probationary officer was not similarly situated to a police captain, and differences in their punishment did not create an equal protection violation. There was a legitimate, non-discriminatory basis for the officer's termination, which was not a pretext for gender bias. Mercer v. City of Cedar Rapids, #01-1135, 2002 U.S. App. Lexis 21480 (8th Cir. October 15, 2002). {N/R}
     Discriminatory retaliation complaint by a correctional officer fails, where the plaintiff and other officers disciplined for attendance violations were not similarly situated and evidence related to the disciplinary records of other officers was properly excluded. Snipes v. IL Dept. of Corrections, #01-3148, 291 F.3d 460, 2002 U.S. App. Lexis 9728, 88 FEP Cases (BNA) 1681 (7th Cir. 2002). {N/R}
     Seventh Circuit rejects comparative evidence of disparate disciplinary action, where the coworkers were supervised by different superiors. Snipes v. IL Dept. of Corrections, #01-3148, 2002 U.S. App. Lexis 9728 (7th Cir.). [2002 FP Aug]