Monthly Law Journal Article: Civil Liability for Sexual Harassment of Female Employees By Prisoners, 2010 (7) AELE Mo. L. J. 301.

    A county was not entitled to summary judgment on male deputies' federal and state sex discrimination challenge to a policy barring them from supervising female inmates in jails. The county failed to show that there was no genuine issue of material fact as to whether it was entitled to a "bona fide occupational qualification" (BFOQ) defense to the sex discrimination claim. The BFOQ defense could not be established merely by deferring to the sheriff's judgment. There were also factual issues as to whether the sheriff arrived at the policy by engaging in a reasoned decision-making policy, as well as whether the policy legitimately furthered important underlying interests, such as protecting the safety of female inmates. Ambat v. City & Cnty. of San Francisco, #11-16746, 2014 U.S. App. Lexis 12512 (9th Cir.).
     The federal Bureau of Prisons (BOP) appealed a ruling that it had to bargain with a union of employees over installation of metal detectors at a compound in a high security facility. The metal detectors were placed where prisoners had to pass when going in or out of an exercise yard. A federal appeals court ruled that the order should be enforced in part, but ordered further proceedings to determine whether subsequent changed circumstances resulting from the changed use of the metal detectors meant that the order to bargain over the issue should be revised. U.S. DOJ v. FLRA, #12-1383, 2013 U.S. App. Lexis 24925 (D.C. Cir.).
     A prosecutor filed felony charges against a correctional officer who took his cell phone inside a facility in violation of departmental policies and Illinois law, making 30 calls from work. Another officer spread the news of this to fellow employees. A casework supervisor called the prosecutor, urging him to drop the charges and let the matter be handled in the employee disciplinary process. Internal affairs learned of this and investigated the supervisor, who was reprimanded and suspended for five days. He sued, claiming he was subjected to unlawful retaliation for protected speech. A federal appeals court upheld a ruling that the defendants were entitled to qualified immunity from liability as no clearly established rights were violated. Further, the plaintiff had not proven his case as a matter of law. His speech was not constitutionally protected since the interests in maintaining workplace order and security outweighed the plaintiff's interests in expressing his opinion on a work-related prosecution. Volkman v. Ryker, #12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).
     A female correctional officer who worked in a sex offender unit at a youth correctional facility claimed that a male prisoner targeted her for sexual harassment, including open masturbation and various threats. She quit her job and sued the facility for a hostile work environment, sexual harassment, and retaliation. Upholding a judgment for the defendant on all claims, the Montana Supreme Court found that the defendant had extended and held open an offer of a transfer to a different unit to the plaintiff for approximately one year before she quit and that it also promptly and reasonably offered a solution to end the inmate's harassment of her by making the transfer available. Puskas v. Pine Hills Youth Corr. Facility, #DA 12-0515, 2013 MT 223, 371 Mont. 259, 2013 Mont. Lexis 313.
     A correctional clerical employee's job involved looking for coded gang messages in inmate mail. She filed a lawsuit under Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction to the use of scented candles and wall plug-ins around her work area constituted a disability. A federal appeals court held that this did not qualify as a disability under the ADA and that her employer had not received her FMLA certification before an applicable deadline, so that her rights under that statute were not violated. Milton v. Texas Dept. of Criminal Justice, #12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).
     Does a doctor who treats prisoners have a legal duty to warn corrections officers that an inmate has a communicable disease? One female correctional officer assigned to strip search female prisoners before and after they received visitors claimed that she contracted a methicillin-resistant staphylococcus aureus (MRSA) infection because approximately twelve of the prisoners were infected. She sued the private company that provided medical services to the prisoners, claiming that its staff members knew which prisoners were infected and should have informed her so that she could take precautions. The Pennsylvania Supreme Court found that the defendant was not liable to the officer, finding that the trial court had properly declined to impose new affirmative duties to a third party on medical personnel in their professional relationship to prisoners. Seebold v. Prison Health Services, #9-MAP-2011,.2012 Pa. Lexis 3011.
     A New Jersey jury awarded $6.8 million in damages to two senior white corrections officers who claimed that they were subjected to reverse racial discrimination and harassment by African-American supervisors. They claimed that part of the purpose had been to deny them overtime and secure more overtime for African-American officers. The harassment asserted included the filing of false disciplinary reports, and the jury found that the Department of Corrections violated a state anti-discrimination law by transferring the two white officers and failed to take action to address complaints about hostility directed against them and other white officers at a facility for non-violent offenders. The award included $3 million dollars to each officer for punitive damages, as well as compensation for lost pay and pain and suffering. Milutin and Healey v. New Jersey State Department of Corrections, state court, Mercer County, Trenton, N.J., reported in Newark Star-Ledger. Sept. 10, 2012.
     A federal appeals court rejected a challenge to the legality of a prison-paid chaplaincy program that limited the hiring of chaplains to only those who were members of five major faiths--Protestant, Catholic, Jewish, Muslim, and Native American religions. While a Wiccan chaplain believed that it was unfair that he was not compensated for his services, there was no showing of intentional discrimination against him on the basis of religion. On his employment discrimination claim, requiring that he be a member of the designated faiths was a bona fide occupational qualification justified by the requirement of meeting the religious needs of the prisoners. The court did not reach the issue of whether Wiccan inmates could succeed in a challenge to the policy, but did say that, at this point, there is no clearly established right of Wiccan prisoners to have a paid chaplain. McCollum v. California Department of Corrections, #09-16404, 647 F.3d 870 (9th Cir. 2011).
      A female correctional officer, having previously been warned about engaging in excessive absenteeism, declined to accept a change of shift requiring longer hours, and which she claimed would not reasonably accommodate her back problems. She was terminated, and claimed that this constituted gender discrimination because a male co-worker who also refused to accept a shift change was not disciplined as severely. A federal appeals court found that the two officers' actions were similar enough that a jury could find that the different treatment constituted gender discrimination, and should be allowed to consider her claim. Summary judgment for the employer was improper, and there was no indication in the record that the employer had taken her disciplinary record into consideration in firing her. Eaton v. Indiana Department of Corrections, #10-3214,  2011 U.S. App. Lexis 18675 (7th Cir.).
     While the adoption by California of a three-day-per-month furlough program for state employees reduced the pay of members of the California Correctional Peace Officers Association, this was within the authority of the state legislature in revising the state budget, and did not violate state labor or government codes or the state's minimum wage law. A trial court award of back pay for the officers was therefore reversed. Brown v. Superior Court, #A127292, 2011 Cal. App. Lexis 1259 (1st Dist.).
    A correctional officer was attacked by two prisoners while she was escorting them to a jail's law library. The library was located in a drunk tank cell with handles on the front and back of the door. She claimed that one of the prisoners threw her off balance when he grabbed the inside door handle, and the prisoners then took her hostage. The officer failed to prove that the attack was a "state created danger" with the incident facilitated by jail understaffing and a dangerous door handle in violation of due process. The alleged actions of the sheriff and county commissioners in allowing understaffing and the door handles did not rise to the level of deliberate indifference and were not shocking to the conscience. Fields v. Abbott, #10-2805, 2011 U.S. App. Lexis 18027 (8th Cir.).
     Employees of the Federal Bureau of Prisons (BOP) at a medical facility sued the government under the Privacy Act and Federal Tort Claims Act claiming that an employee roster with confidential personal information was improperly disclosed to inmates and fellow employees. Information in the roster included employees' names, addresses, Social Security numbers, home telephone numbers, pay grades, and other personal information. A federal appeals court ruled that the trial court did not erroneously conclude that the "inadvertent" final act of disclosing the roster was "willful" for purposes of the Privacy Act claim, given the "entire course of conduct." The trial court also did not commit an error in making a non-rebuttable inference of disclosure of the roster as a sanction for the government's destruction of relevant evidence needed in the case. The appeals court upheld the finding that a Privacy Act violation occurred and the dismissal of Federal Tort Claims Act claims. It also ruled that the trial court erred, in part, in limiting some plaintiffs to recovering only $1,000 in statutory damages, as they might also be able to recover greater actual damages for "lost time" spent "dealing with the disclosure." It rejected, however, the assertion that the employees could recover damages for "future protective measures." Beaven v. U.S. Dep't of Justice, #08-5297, 2010 U.S. App. Lexis 19927 (6th Cir.).
     The EEOC filed suit on behalf of a class of female Muslim employees against a private company that entered into a contract with a county to run a prison. The lawsuit claimed that it was unlawful religious discrimination not to allow these employees an exception to an employee dress policy that barred them from wearing "khimars" (Muslim religious headgear) at work. Rejecting this claim, the appeals court ruled that even if the employees had a sincere religious belief requiring them to wear the khimars, this belief was outweighed by the need for safety in the prison, "undoubtedly an interest of the greatest importance." The policy of no hats was adopted to help prevent the introduction of contraband into the facility, and to prevent misidentification of persons wearing headgear. Equal Employment Opportunity Comm'n v. Geo Group, Inc. #09-3093, 2010 U.S. App. Lexis 15973 (3rd Cir.).
     A correctional officer was prosecuted for custodial sexual misconduct while working in the county jail's women's division, and terminated. He was acquitted of the criminal charges in state court. He sued, asserting claims for race and gender discrimination. The appeals court found no evidence of race or gender discrimination. The court noted that there was a lower standard of proof as to the termination than was required for the criminal proceeding. Egonmwan v. Cook County Sheriff's Dep't, #09-2764, 602 F.3d 845 (7th Cir. 2010).
     A former Cook County corrections officer who was prosecuted for custodial sexual misconduct while working in the women's section of a jail was later acquitted of the charges. Rejecting constructive discharge, race and gender discrimination, and malicious prosecution claims, a federal court found no evidence of race or gender discrimination, and noted that, as to the malicious prosecution claim, Illinois law regards a grand jury indictment as prima facie evidence of probable cause for a prosecution. Swearnigen-El v. Cook County Sheriff's Dep't, #09-2709, 602 F.3d 852 (7th Cir. 2010).
     Reacting to reports of male correctional officers engaging in sexual abuse of female prisoners, the State of Nevada adopted a policy of hiring only female correctional lieutenants at a women's prison to serve as shift supervisors. Four male correctional officers filed a Title VII lawsuit challenging the policy as unlawful sex discrimination. Overturning summary judgment for the defendants, a federal appeals court found that they had not shown that "all or nearly all" males, if placed in supervisory positions, would tolerate male officers' sexual abuse of female inmates, or that an individual assessment of applicants on this issue would be impossible or highly impractical. The court further emphasized that the law protects the ability of applicants and employees to pursue their career goals without sex discrimination, and that the fact that all those of the same sex faced the same disadvantage did not justify the policy. The court rejected arguments that the policy only imposed a minimal restriction on male prison employees' promotional opportunities, or that the sex discrimination, in this instance, constituted a bona fide occupational qualification. Breiner v. Nev. Dep't of Corr., #09-15568, 2010 U.S. App. Lexis 13933 (9th Cir.).
     Nurses at a county jail were held hostage by inmates who escaped from their cells. During the recapture of the inmates, one of the nurses was shot by police. The nurses sought to sue the county and a private corporation that operated the jail, seeking damages. The defendants argued that the nurses' exclusive remedy was workers' compensation, so they could not sue. A Florida appeals court found that the nurses' claims were entirely based on allegations of negligence, so that an intentional torts exception to workers' comp exclusivity did not apply. Summary judgment for the defendants was affirmed. Hunt v. Corrections Corporation of America, #1D09-1260, 2010 Fla. App. Lexis 6661 (1st Dist.).
     A federal appeals court ruled that the Florida Department of Corrections can be liable, under Title VII of the Civil Rights Act of 1964, for failing to remedy a sexually hostile work environment that male inmates allegedly created for female employees at a correctional facility by openly masturbating towards them, calling them sexually charged terms, and stating, in graphic detail, the sex acts they wished to perform with them.. The employees included nurses, a doctor, and a classification officer. A nurse stated that "99.9% of the time," inmate reports of emergencies in the housing units were "bogus," and simply designed to get nurses sent to the unit "to have the entertainment for the evening." The appeals court upheld a jury award of $45,000 in damages to each of 14 employees. While the facility had a sexual harassment policy, it only covered misconduct by fellow employees, and failed to cover acts by prisoners. The court found that a reasonable jury could have concluded that prison officials should have attempted to enforce a dress code requiring male inmates to wear pants when female employees were in the dorms. Beckford v. Dept. of Corr., #09-11540, 2010 U.S. App. Lexis 9452 (11th Cir.).
     A nurse practitioner working as a contract worker established that a sheriff barred her from working at a county correctional facility after she informed the FBI of allegations of prisoner abuse at the facility, doing so by revoking her security clearance. A federal appeals court upheld an award of $360,000 in compensatory damages and $250,000 in punitive damages against the sheriff. The appeals court agreed with the trial judge's assessment that the jury could reasonably infer from the evidence that the sheriff had acted with, "at a minimum, conscious indifference to" the nurse's First Amendment rights Cabral v. US Dep't of Justice, #07-1633, 2009 U.S. App. Lexis 24811 (1st Cir.).
     A woman employed as a physician's assistant by the Utah Department of Corrections claimed that she was subjected to disability discrimination when the department added to her job requirements, and to other jobs requiring inmate contact, a physical safety training requirement that she was unable to complete because of physical restrictions. The court found that a job function that is "rarely required" in the normal course of an employee's duties can still be an "essential" job function, and that in this case, the employee was not entitled to demand that her job duties not include this essential function. The potential consequences of employing an employee in a job involving inmate contact who could not complete the training was "sufficiently severe" to mandate this result. In this case, the employee suffers from lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren’s syndrome, and fibromyalgia. She also had both hips replaced and underwent surgery on her left shoulder. Because of these medical problems, she could not complete the required training,  She was offered a job elsewhere where such training was not required, at a location 100 miles from her home, and was told, in the alternative, that she would be terminated. She was ultimately fired. Rejecting the argument that this amounted to disability discrimination, the court noted that the department's fears "regarding the physical safety of its medical and clinical staff were realized in 1999, when a medical technician was attacked by an inmate during the course of her duties." This incident led to the training requirement, which the court upheld. Hennagir v. Utah Dep't of Corr., #08-4087, 2009 U.S. App. Lexis 20163 (10th Cir.).
      After an Assistant Deputy Director in the Illinois Department of Corrections voluntarily testified at a Prisoner Review Board hearing supporting a prisoner's release, he was transferred to another role in the Department. He claimed that this violated his First Amendment rights, but a federal appeals court has upheld a grant of qualified immunity to the defendants in his lawsuit, holding that, at the time of the action, it was "not clearly established that the employer's action violated any constitutional rights." Matrisciano v. Randle, No. 06-1599, 2009 U.S. App. Lexis 13922 (7th Cir.).
    A former prison guard challenged her firing for being involved in a romantic relationship with a former prisoner. The policy prohibiting such relationships was justified by the "clear and obvious" threat such relationships pose to prison security and order. Poirier v. Massachusetts Dept. of Corr. , No. 08-1290, 2009 U.S. App. Lexis 3940 (1st Cir.).
     Nine separate incidents of alleged sexual harassment and discrimination that a female prison employee claimed occurred over almost a two year period did not show "severe and pervasive harassment," according to a federal appeals court, rejecting the plaintiff's argument that she was treated like a "sex object," and that the environment she worked in was like a "men's club" and was degrading and humiliating. Additionally, the city showed legitimate reasons for her termination after she stopped coming to work when there was evidence that she never submitted paperwork which would have been required for the approval of leave under the Family and Medical Leave Act, including paperwork from her doctor. Stephenson v. City of Philadelphia, No. 06-3522, 2008 U.S. App. Lexis 18629 (Unpub. 3rd Cir.).
     The New Jersey Department of Corrections' training academy no-facial hair policy was facially neutral and only incidentally burdened religious conduct. It was rationally related to compliance with federal and state health regulations concerning the use of respirator masks and to a concern about the esprit de corps, which comes from uniformity of appearance. It therefore did not violate the rights of a Muslim trainee removed from the training program when he failed, on three separate occasions, to keep his beard within parameters allowed to him as an accommodation of his religion. The policy would be lawful, the court stated, under any standard of review, including strict scrutiny. Valdes v. New Jersey, No. 07-2971, 2008 U.S. App. Lexis 17380 (Unpub. 3rd Cir.).
     Mississippi jailers claimed that, after they witnessed a sergeant beating a prisoner, they were told to report the incident to a supervisor, but were fired one day after they filed the report, purportedly on unrelated charges of misconduct. Ordering further proceedings on the fired jailers' First Amendment claims, an appeals court found that there was a genuine issue of fact as to whether their action in filing the report was part of their official job duties, and therefore not protected speech under the First Amendment. The issue is whether or not language in a policy manual stating that jailers should report certain kinds of incidents showed that their actions in doing so was part of their job duties. The plaintiff jailers argued that the manual did not create any such duty to report incidents such as the beating. Williams v. Riley, No. 07-60252, 2008 U.S. App. Lexis 8990 (5th Cir.).
     Discipline of correctional employees because of their association with a motorcycle club did not violate their First Amendment or due process rights to freedom of intimate association or expressive association. The court found that the motorcycle club memberships were not expressive association "on matters of public" concern, and that those memberships also were not intimate relationships provided protection under the constitution. Additionally, law enforcement agencies believed that the motorcycle club in question engaged in criminal acts. Piscottano v. Murphy, No. 05-3716, 2007 U.S. App. Lexis 29541 (2nd Cir.).
Escape
     Private company that operated a prison under a contract with the State of Kentucky was not liable for an escaped prisoner's robbery, assault, and rape of a woman several hours after his escape. Under Kentucky state law, applied by the federal court on the plaintiff's negligence claim, there is no negligence liability when the harm to a third person, the victim, is caused by another person's intentionally criminal acts. Intentionally violent acts against unknown third persons, the court stated, are generally not regarded as foreseeable under Kentucky state law. Norris v. Corrections Corporation of America, No. 3:07CV-273, 2007 U.S. Dist. Lexis 83965 (W.D. Ky.).
     While an Illinois prison employee (serving as a clinical casework supervisor) had a protected property right under state law not to be demoted or fired without cause, a mere change in his job duties, relating to the entry of data concerning certain disciplinary hearing information and other clerical work, did not constitute a firing or demotion. While his specific job duties changed, he was not placed in a lower pay grade. Further, there was no evidence that the employee's new job duties were so "intolerable" as to constitute a constructive discharge. Akande v. Grounds, No. 05-cv-4212, 2007 U.S. Dist. Lexis 78803 (S.D. Ill.).
     A Mexican-American correctional officer failed to show that he had been subjected to national origin discrimination or that there was any connection between the allegedly discriminatory conduct of two employees of the Illinois Department of Corrections (such as discriminatory remarks) and his firing. He was fired after an investigation concerning the alleged smuggling of contraband cigars into a correctional facility. Jennings v. IL Dep't of Corr., No. 06-1637 2007 U.S. App. Lexis 18325 (7th Cir.).
     Without special circumstances, the sexually harassing conduct of inmates in a juvenile correctional facility could not be attributed to the employer. Additionally, the alleged sexually harassing conduct of the female plaintiff's former co-workers, such as asking for dates, while it was "inappropriate" was not so severe as to make the employer liable for creating an intolerable work environment that resulted in her resignation. Vajdl v. Mesabi Acad. of Kidspeace, Inc., No. 06-2482, 2007 U.S. App. Lexis 9368 (8th Cir.).
     Occasional incidents of sexually "inappropriate" language by co-workers were not severe and pervasive enough to show that female correctional employee faced a hostile work environment constituting sexual harassment in violation of federal law. The complained of remarks were "isolated" incidents, offhand comments, and simple "teasing." Benny v. Penn. Dept. of Corrections, No. 05-5499, 2006 U.S. App. Lexis 28596 (3rd Cir.). [N/R]
     Correctional officials' alleged failure to do anything in response to female correctional employee's concerns about presence of a male inmate in her office after hours was sufficient to support denial of summary judgment in a lawsuit claiming that the inmate's alleged sexual assault on her grew out of a "hostile work environment," because this lack of response could be found unreasonable by a reasonable jury. Erickson v. WI Dep't of Corr., No. 05-4516, 2006 U.S. App. Lexis 28125 (7th Cir. November 14, 2006) [N/R]
     White male correctional employee failed to show that his firing for having brought prohibited alcoholic drinks onto prison property on several occasions constituted racial discrimination. Another employee who was not fired for possession of alcohol on prison property was not similarly situated since there was no showing of multiple incidents over a period of time, as there was with the plaintiff. Veazey v. Ark. Dept. of Corrections, No. 5:05CV080, 2006 U.S. Dist. Lexis 73430 (E.D. Ark. 2006). [N/R]
    Former correctional officers who had been charged with drug trafficking failed to assert valid claims for malicious prosecution, false imprisonment, or wrongful termination. There had been probable cause to arrest them, and, while state criminal charges against them were dropped, this was not done in a manner indicating their innocence, but rather was based on a decision to instead pursue possible federal charges. Additionally, on the wrongful termination claim, the officers failed to exhaust their available administrative appeals, and instead decided to voluntarily resign, so that they were not properly "terminated" at all. Law v. South Carolina Dept. of Corrections, No. 26134, 629 .E.2d 642 (S.C. 2006). [N/R]
     Female former correctional officer failed to show that her firing for entering into a romantic relationship with an inmate, and later marrying him, was based on racial discrimination. While she claimed that she was discriminated against because of her African-American race, as certain white correctional officers who had romantic relationships with prisoners were not fired, those white officers had begun their relationships before their romantic partners were incarcerated, while the plaintiff knowingly entered into a prohibited relationship with a known incarcerated prisoner, serving a life sentence for murder, and who had previously been under her supervision. Burke-Fowler v. Orange County, Florida, No. 05-14899, 447 F.3d 1319 (11th Cir. 2006). [N/R]
     Jail guard's speech on alleged abuse of inmates was on a matter of public concern, protected by the First Amendment, and there were factual issues as to whether he was subjected to harassment in retaliation for exercising that First Amendment right. Fairley v. Andrews, No. 03C5207, 430 F. Supp. 2d 786 (N.D. Ill. 2006). [N/R]
     Jail commander did not have a constitutionally protected property interest in his job under Oregon law on the basis of the county's personnel rules and ordinance, given disclaimers in a personnel manual stating that the rules and ordinance did not create any contract rights. Brunick v. Clatsop County, #A122339, 129 P.3d 738 (Or. App. 2006). [N/R]
     Female correctional officer's claims that female officers were not given identical locker room facilities as the male officers had and that the city's department of corrections failed to conduct a proper investigation of her discrimination complaint were insufficient to show "adverse employment actions" amounting to sex discrimination under federal employment law. Hayes v. Kerik, No. CV-99-5725, 414 F. Supp. 2d 193 (E.D.N.Y. 2006). [N/R]
     While employees of community correctional facilities in Ohio were entitled to due process on any demotion, suspension or termination of employment, there was no available cause of action for money damages. Disputed issues of fact, however, remained on terminated female African-American employee's claims of disparate treatment, disparate pay, and unlawful retaliation. McClain v. Northwest Community Corrections Center Judicial Corrections Bd., No. 05-3154, 440 F.3d 320 (6th Cir. 2006). [N/R]
     Termination of female correctional employee after she married a former inmate did not violate her right to freedom of association or to maintain intimate relationships. The "anti-fraternization" rule applied had a reasonable relationship to legitimate interests in maintaining institutional security in correctional facilities. Lape v. Pennsylvania, No. 05-1094, 157 Fed. Appx. 491 (3rd. Cir. 2005). [N/R]
     Firing of Mississippi corrections counselor for allegedly engaging in an "improper relationship" with a prisoner was not "arbitrary or capricious." Correspondence from the counselor to an inmate which she signed "Your Mom" violated rules prohibiting counselors from establishing close personal relationshipswith prisoners. Mississippi Dept. of Corrections v. Maxwell, No. 2004-CC-00637, 913 So. 2d 1013 (Miss. App. 2005). [N/R]
     Black employee was properly fired for working for the same county department of corrections that his daughter was employed by, in violation of the county's policy against nepotism, and he failed to show that his termination was based on racial discrimination, as he claimed. Anderson v. Sedgwick, No. 05-3118, 150Fed. Appx. 754 (10th Cir. 2005). [N/R]
     Gay, HIV-positive, former cook in California youth correctional facility was properly awarded $1,917,104 in damages on state law claim that he was subjected, during five years of employment, to pervasive sexual orientation harassment and retaliation. Plaintiff claimed that his complaints to management were ignored. Hope v. Cal. Youth Auth., No. B171593, 2005 Cal. App. Lexis 1853 (Cal. App. 2nd Dist. 2005) [2006 JB Jan]
    If, as former Illinois prison warden claimed, she had no policymaking function and no discretionary authority, then her alleged termination based on her Republican political affiliation would demonstrate the violation of her clearly established First Amendment rights. Appeals court rejects, however, plaintiff's due process claim as she had no constitutionally protected property interest in continued employment as a state prison warden. Kiddy-Brown v. Blagojevich, No. 04-2283, 408 F.3d 346 (7th Cir. 2005). [N/R]
     Male correctional officers alleged acts of sexual harassment, including asking female officer out on dates, including out of town trip, and engaging in alleged retaliation when she refused was sufficiently severe or pervasive to state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Porter v. California Dept. of Corrections, No. 02-16537, 419 F.3d 885 (9th Cir. 2005). [N/R]
     Plaintiff assistant wardens of Illinois state prisons are policymaking officials and therefore can be fired by the governor on the basis of their political affiliation. Riley v. Blagojevich, 04-3085, 2005 U.S. App. Lexis 20631 (7th Cir.). [2005 JB Nov]
     Female prison employees' claim that male warden gave favorable treatment to other female employees with whom he was having sexual affairs, while they were retaliated against when they complained, was sufficient, under California law, to create a viable case of sexual harassment. Miller v. Dept. of Corrections, No. S114097, 2005 Cal. Lexis 7606 (2005). [2005 JB Sep]
     Employee's lawsuit against private corporation (Correctional Services Corporation) operating correctional facility could not be pursued as a federal civil rights claim under 42 U.S.C. Sec. 1983, since the company's employment decisions are not made under color of state law, which is a necessary part of such a claim. Cornish v. Corr. Serv. Corp., No. 04-10550, 402 F.3d 545 (5th Cir. 2005). [N/R]
     While correctional officer's comments made to female employee of juvenile boot camp were of a sexual nature, they were not severe and pervasive enough to constitute sexual harassment. Moser v. Indiana Dep't of Corr., No. 04-1130 406 F.3d 895 (7th Cir.2005). [N/R]
     County did not violate the due process rights of retired sheriff's deputies by requiring them to pay higher health insurance premiums than were paid by currently working deputies. Germano v. Winnebago County, 2005 U.S. App. Lexis 6075 (7th Cir.). [N/R]
     Female correctional officer failed to show that alleged sexual harassment by a co-worker was "severe or pervasive" as required to impose liability on her employer, or that employer ignored her complaint about his conduct. Sheriff's office, in fact, took the incident in question seriously, and suspended the male deputy without pay for thirty days. Hathaway v. Multnomah County Sheriff's Office, No. 03-35571, 123 Fed. Appx. 806 (9th Cir. 2005). [N/R]
    A policy of random drug testing, when applied to an employee of the Florida Department of Juvenile Justice who worked in "long-range" planning, was unconstitutional since there was no special need for sobriety on his part, such as protection of juveniles or public safety. Wenzel v. Bankhead, No. 4:03 CV 403, 351 F. Supp. 2d 1316 (N.D. Fla. 2004). [N/R]
     Indiana Department of Corrections did not violate an employee's Fourth Amendment rights by requiring her to submit to a psychological examination inquiring into details concerning her personal life. Greenawalt v. Indiana Department of Corrections, No. 04-1997, 397 F.3d 587 (7th Cir. 2005). [2005 JB Apr]
     Order requiring Bureau of Prisons to release entire Special Investigative Supervisor Manual to employee union was overbroad and an abuse of discretion when portions of it were irrelevant to union's tasks in representing disciplined employee, and the Bureau contended that a release of the entire document would compromise internal agency security. Federal Labor Relations Authority v. U.S. Department of Justice, No. 03-4051 2005 U.S. App. Lexis 1087 (8th Cir.). [2005 JB Mar]
     Michigan Department of Corrections' decision to designate certain jobs in housing units at female prisons as "female only," was valid. Gender is found to be a "bona fide occupational qualification" for such jobs, in light of a past history of alleged sexual abuse of female prisoners by male personnel. Everson v. Michigan Dep't. of Corrections, No. 02-2028, 2004 U.S. App. Lexis 24905 (6th Cir. 2004). [2005 JB Jan]
     State correctional officers were not entitled to a preliminary injunction against discipline of them for associating with Outlaws Motorcycle Club, a group alleged to be a criminal gang. The directive prohibiting officers from conduct constituting or giving rise to the appearance of conflict of interest, engaging in unprofessional or illegal behavior that could reflect negatively on the Department, and acting in ways jeopardizing institutional security or the health, safety, or welfare of the staff or inmates, which was the basis for the discipline, was not overbroad under the First Amendment. Piscottano v. Murphy, 317 F. Supp. 2d 97 (D. Conn. 2004). [N/R]
     Arbitration award upholding suspension of corrections officer for three and a half months without pay for refusing to simultaneously escort two diabetic inmates to facilities "insulin room" could not be overturned on "public policy" grounds. While the officer claimed that the order was unlawful under a prison rule requiring prisoners to be escorted to the insulin room "individually," he failed to show that the rule was aimed at prison safety, and there was evidence that the rule was enacted to ensure accurate accounting and disposal of syringes used by inmates who self-administered insulin while medical personnel was not available. Selman v. Department of Correctional Services, 773 N.Y.S.2d 364 (A.D. 1st Dept. 2004). [N/R]
     County sheriff was not entitled to qualified immunity from lawsuit by correctional officer for violation of his First Amendment rights and wrongful termination in violation of public policy by firing him after he complained about fellow officer's alleged illegal conduct while transporting an extradited prisoner. Trial court judge upholds jury awards of $88,027 for past lost wages and benefits, and $40,000 for future lost wages and benefits, but orders new trial on jury's "excessive" $250,000 award for emotional distress unless plaintiff officer agrees to a reduced amount of $130,000. Shepard v. Wapello County, Iowa, 303 F. Supp. 2d 1004 (S.D. Iowa 2003). [N/R]
    New Jersey intermediate appeals court upholds Merit System Board's decision that county was entitled to designation of eight Juvenile Detention Officer positions as "male-only" on the basis of "bona fide occupational qualification" because of privacy interest of male juvenile detainees in not being viewed by female officers while showering, using toilet, and being strip-searched. In the Matter of Juvenile Detention Officer Union County, 837 A.2d 1101 (N.J. Super. A.D. 2003). [N/R]
     Correctional employee's "non-theistic" spiritual belief that he should not cut his hair was not a protected religious belief sufficient to challenge the state correctional department's grooming policy, since it was merely based on his own "personal and philosophical" choices. His desire to "live simply and avoid excessive pride" did not qualify for a possible religious exemption from the grooming policy. Luken v. Brigano, #CA2003-01-007, 797 N.E.2d 1047 (Ohio. App. 12 Dist. 2003). [N/R]
     Correctional rule barring prison employees from non-work-related contact with prisoners, parolees, probationers, and their relatives and visitors did not violate employees' rights. Akers v. McGinnis, #01-18, 2003 U.S. App. Lexis 24155, 352 F.3d 1031 (6th Cir.). [2004 JB Jan]
     A probationary employee of a community corrections center was entitled to an opportunity to be heard before being terminated and was denied due process when she was not told why she was being offered a choice between quitting or being fired. McClain v. Northwest Comm. Corrections Cent., 268 F. Supp. 2d 941 (N.D. Ohio 2003). [N/R]
     Male correctional officer was properly awarded $750,000 in compensatory damages for alleged sexual harassment by a female co-worker and the alleged failure to his superiors to adequately remedy the problem, along with $850,000 in attorneys' fees and costs. New Jersey Supreme Court upholds, however, reversal of $3 million punitive damages award, based on inadequate jury instructions concerning willful indifference by upper management which failed to explain the term "upper management." Further proceedings ordered on issue of punitive damages. Lockley v. State of New Jersey Department of Corrections, 828 A.2d 869 (N.J. 2003). [N/R]
     Female correctional officers showed that sheriff's office provided a pervasively sexually hostile work environment for female employees and that they faced unlawful retaliation for complaining about it. Officers did not show, however, that they were denied promotions and were terminated on the basis of sex discrimination. Court awards both of two plaintiffs $150,000 in compensatory damages and $20,000 in punitive damages, as well as attorneys' fees. Brissette v. Franklin County Sheriff's Office, 235 F. Supp. 2d 63 (D. Mass. 2003). [N/R]
     Dispute over whether county violated the terms of a collective bargaining agreement by requiring correctional officers to dispense medication to prisoners was subject to arbitration under Illinois state law regardless of whether or not the disputed job assignments were legal under a state controlled substances law. Any exclusion from arbitration has to be expressly stated in a public employees' collective bargaining agreement under the Illinois Public Labor Relations Act, 5 ILCS 315/8. Rock Island County Sheriff Grchan v. AFSCME, AFL-CIO, Local 2025, #3-03-0052, 791 N.E.2d 57 (Ill. App. 3d Dist. 2003). [N/R]
     Substantial evidence supported dismissal of corrections officer for improperly having "avoidable contact" with prisoner, when an enveloped address to him was in her handwriting as was the enclosed letter addressed "Hey Baby." Lombardi v. Dunlap, #WD 61417, 103 S.W.3d 786 (Mo. App. W.D. 2003). [N/R]
     Arbitrator did not have the authority to reduce the discipline of a correctional officer from termination to a 60-day suspension in circumstances where the misconduct involved the development of an inappropriate personal relationship with an inmate. The officer's relationship with the inmate created a potential security risk. State of Rhode Island v. Brotherhood of Correctional Officers, No. 2001-590-Appeal, 819 A.2d 1286 (R.I. 2003). [N/R]
     Correctional officer's memo to his employer, requesting vacation time to "spend the Christmas holiday" with his parents, even though it did mention their failing health, was not sufficient to inform the department that he was seeking family leave as he was entitled to do under a California state statute, to take care of his parents. Denial of his request, therefore, did not violate his rights or subject the employer to liability. Stevens v. California Department of Corrections, No. C039896, 132 Cal. Rptr. 2d 19 (Cal. App. 2003). [N/R]
     Correctional officer allegedly forced to quit after he reported a co-worker's misconduct in playing cards with a group of inmates stated a possible claim for violation of his First Amendment rights based on tolerance of supervisors of harassment of him for making the report, since tolerance of such conduct was a "matter of public concern." Baron v. Hickey, 242 F. Supp. 2d 66 (D. Mass. 2003). [N/R]
     Security guard fired by Mississippi Department of Corrections had the burden on appeal of showing that conduct which was the basis for his termination, assaulting and injuring several inmates during a fight and falsifying records, had not occurred. Decision by Employee Appeals Board which reinstated guard was reversed as "arbitrary and capricious" when there was evidence that he took a handcuffed prisoner into an ice room and beat him, as well as a fellow officer's observation of him "driving" another prisoner's head into a wall. Mississippi Department of Corrections v. Harris, No. 2001-CC-004223-COA, 831 So. 2d 1190 (Miss. App. 2002). [N/R]
     Arbitrator could properly find, under the terms of a collective bargaining agreement, that the firing of a clerk-typist from a position at a county jail for bringing Playgirl magazine to work was not supported by just cause after determining that her conduct was not willfully in violation of a law prohibiting the bringing of "obscene" materials into the jail and the firing was simply for bringing the magazine to work, regardless of any explanation she had. The arbitrator exceeded his authority, however, in ordering that the employee be assigned to a job elsewhere than the jail, since the county had the ability to direct where she would work. County of Bedford v. Pennsylvania Social Services Union, SEIU, AFL-CIO, Local 668, 814 A.2d 866 (Pa. Cmwlth 2003). [N/R]
     Delaware Department of Corrections code which prohibited off-duty personal contact with offenders was not "substantially related" to legitimate state interests in the orderly functioning of the prisons. No evidence showed that terminated female correctional officer's off-duty relationship with a paroled former inmate had "any impact" on inmates or prison staff, but the defendant correctional officials were entitled to qualified immunity because the asserted constitutional right to privacy to cohabit with a former inmate was not "clearly established" law. Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002).[N/R]
     An employee hired to staff an Ohio community-based correctional facility, who was subject to a 120-day initial review period, was entitled to due process in the termination of her employment, the Supreme Court of Ohio ruled in response to a question certified by a federal district court. The court declined, however, to answer a second certified issue of whether the employee was an "at-will employee." McClain v. Northwest Community Corrections Center, Judicial Corrections Board, No. 2001-1312 (Ohio 2002). [N/R]
      Department of Corrections failed to rebut prison employee's prima facie case that he was demoted in retaliation for his filing of a whistleblower report concerning a meat theft from the prison kitchen, and therefore would be liable for retaliation under a state statute. 43 P.S. Sec. 1423 et seq. O'Rourke v. Commonwealth of Pennsylvania, 778 A.2d 1104 (Pa. 2001). [N/R]
     Correctional officials should have been granted qualified immunity in lawsuit by African-American correctional employee terminated following an investigation of his alleged choking of a handcuffed inmate, since he failed to adequately show a possible equal protection violation. Inmon v. Arkansas Dept. of Correction, #00-2113, 245 F.3d 1030 (8th Cir. 2001). [N/R]
    Correctional department internal affairs investigator was entitled to First Amendment protection for his report concerning a correctional officer's alleged wrongdoing and use of excessive force during a prison riot, Factual issues existed as to whether he was subsequently constructively discharged in retaliation for his report and his refusal to alter it, or whether he merely resigned because he was unhappy with his job. Bailor v. Taylor, 170 F.Supp. 2d 466 (D. Del. 2001). [N/R]
     D.C. Department of Corrections employees facing closure of a D.C. reformatory were not entitled to federal competitive status for the purpose of retirement benefits and "entitlement" to federal employment simply because some federal prisoners were committed to D.C. prisons. The passage of the D.C. Comprehensive Merit Personnel Act, D.C. Code Secs. 1-201.01 established a city personnel system apart from that of the federal government. Lucas v. United States, Nos. 00-5149, 00-5191, 268 F.3d 1089 (D.C. Cir. 2001). [N/R]
     298:148 Arbitrator's award reinstating correctional officer who used physical violence against inmate and failed to report it did not violate public policy. Illinois, State of, v. AFSCME, Council 31, AFL-CIO, No. 5-99-0688, 749 N.E.2d 472 (Ill. App. 2001).
     297:131 Corrections officers subject to discipline for "inattentiveness" during training on "gays and lesbians" in the workplace were improperly punished for silently reading bibles, when other officers, inattentive or reading non-religious materials, were not similarly punished. Altman v. Minn. Dept. of Corrections, #00-1168 and 00-1489, 251 F.3d 1199 (8th Cir. 2001).
     297:131 Labor board upholds an arbitration ruling that federal correctional management could require prison employees to wear a dress shirt, without a tie, even when presented with a doctor's note about a skin irritation. AFGE L-4044 - Council of Prisons L-33 and Federal Corr. Inst., Three Rivers, Tex., #0-AR-3314, 2001 FLRA LEXIS 45, 57 FLRA No. 27, 39 (1914) G.E.R.R. (BNA) 657 (4/30/01).
     296:117 Exclusion of polygraph evidence showing that inmate was telling the truth about her alleged repeated sexual relations with Native American/Hispanic correctional officer required a new trial and reversal of $50,000 damage award to officer, who claimed race discrimination in having been placed on administrative leave during investigation of her accusations. Subia v. Riveland, No. 24627-9-H, 15 P.3d 658 (Wash. App. 2001).
     295:99 Correctional facility had to either make a good faith effort to accommodate an officer, who was also a minister, in his request for unpaid leave to attend religious conferences, or else show that doing so would create an undue hardship; racial harassment claim was also asserted by officer. Jones v. New York City Dept. of Correction, 2001 U.S. Dist. LEXIS 2669 (S.D.N.Y.).
     294:83 Incident in which a white female correctional officer was not disciplined for allegedly kissing an inmate did not show that firing an African-American male officer for allegedly having sex several times with a female prisoner was a "pretext" for racial discrimination. English v. Colorado Dept. of Corrections, No. 99-1452, 248 F.3d 1002 (10th Cir. 2001).
     290:20 $50,000 jury verdict in favor of corrections officer who claimed racial discrimination in placement on administrative leave is overturned because of exclusion from evidence of polygraph test taken by prisoner who accused officer of sexual misconduct. Subia v. Dept. of Corrections, No. 24627-9-II, 15 P.3d 658 (Wash. App. 2001).
     294:84 Warden was entitled to qualified immunity for using race as a criteria to deny a white correctional officer promotion to one of three lieutenant positions; appeals court rules that it was not clearly established in 1992 that this could violate the plaintiff's rights. Elwell v. Dobucki, No. 98-1920, 224 F.3d 638 (7th Cir. 2000).
     293:69 Failure to allow officers being questioned at the workplace about possible criminal misconduct access to attorneys, union representatives and other procedural safeguards violated their rights under California Public Safety Officers' Bill of Rights. California Correctional Peace Officers Assn. v. State of Calif., 82 Cal. App. 4th 294, 98 Cal. Rptr. 2d 302 (2000).
     293:68 Corrections officer did not violate a rule against "making a false official report" when he failed, in his applications for employment, to disclose his criminal conviction for resisting arrest and obstructing an officer, since his applications were not "official reports." Taylor v. Cook County Sheriff's Merit Board, No. 1-99-3550, 736 N.E.2d 673 (Ill. App. 2000).
     291:36 African-American correctional officer could recover $100,000 in emotional distress damages, as well as back pay, after he resigned his job in response to racially hostile work environment caused by the use of racial slurs by his supervisor, also an African-American. Ross v. Douglas County, Nebraska, #00-2688, 234 F.3d 391 (8th Cir. 2000).
     296:117 Female correctional officer was properly awarded $45,000 against New Hampshire Dept. of Corrections based on sexual harassment and a hostile work environment which included male co-workers making sexual remarks and propositions and reading pornographic magazines at work. White v. New Hampshire Dept. of Corrections, No. 99-1818, 221 F.3d 254 (1st Cir. 2000).
     290:19 Federal Bureau of Prisons agrees to pay $120 million in overtime claims to officers who did not receive compensation for time spent before and after their shifts getting and returning equipment. AFGE and Dept. of Justice, 38 (1879) G.E.R.R. (BNA) 1065 (Aug. 2000).
     289:3 Texas appeals court overturns $153,670 jury award to warden fired after he reported to his employer that his supervisor had allegedly taken his girlfriend on trips for state business and kept another girlfriend on the payroll
     earlier solely on the basis of the relationship; statements, which were based solely on rumor and innuendo, did not constitute good faith reports of "violations of law" as required to support an award of damages under the state's Whistleblower Act. Texas Department of Criminal Justice v. Terrell, No. 12-99-00054-CV, 18 S.W.3d 272 (Tex. App. 2000).
     289:4 Maryland correctional officer was properly terminated for allowing three female inmates to live at his house after their release from custody. Stover v. Prince George's Co., #775-1999, 132 Md. App. 373, 752 A.2d 686 (2000).
     [N/R] Jailer engaged in protection political activity in supporting her husband's campaign for sheriff; appeals court orders further proceedings on her claim that she was fired in retaliation. Sowards v. Loudon County, #98-6768, 203 F.3d 426 (6th Cir. 2000).
     [N/R] Caucasian corrections sergeant presented a genuine issue of fact as to whether he was demoted and suspended by the warden for racially discriminatory reasons. Weberg v. Franks, No. 98-1472, 229 F.3d 514 (6th Cir. 2000).
     [N/R] New York county sheriff was final policymaker with respect to the conduct of his staff members toward other officers exercising their First Amendment rights to inform government investigators about co-workers' alleged wrongdoing. Jeffes v. Barnes, No. 98-9369, 208 F.3d 49 (2nd Cir. 2000).
     285:133 Officer's inappropriate use of force against a prisoner, combined with an off-duty incident in which he engaged in lewd dancing, made offensive remarks to members of the public, and broke property in a gay bar, together supported his termination for conduct unbecoming an officer. Green v. City of Sioux Falls, 2000 SD 33, 607 N.W. 2d 43 (S.D. 2000).
     287:166 Black male prison guard at all-female Michigan prison awarded $1.015 million on claim that he was illegally fired for retaliatory reasons after he requested a transfer to an all-male facility because of stress he was suffering from "taunts" by female prisoners. Edwards v. Michigan Dept. of Corr., Mich. Cir. Ct., No. 96-626808- CZ, verdict Sept. 6, 2000, reported in 38 Govt. Emp. Rel. Rptr. Number 1879, p. 1076 (Sept. 26, 2000).
     284:116 New Jersey Supreme Court rejects employer's argument that it could fire a prison nurse for circumventing the "chain of command" in complaining to her supervisor's supervisor of inmates being provided with medicine and medical services without being charged a legally required co-payment and being provided with medication under expired doctor's orders; further proceedings ordered on nurse's "whistleblowing" lawsuit. Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 751 A.2d 1035 (2000).
     284:118 Native American correctional officer should be allowed to wear his hair long (but pinned under his cap) to accommodate his religion, Ohio Supreme Court holds. Humphrey v. Lane, #99-206, 728 N.E.2d 1039 (Ohio 2000).
     283:101 Correctional officer who made an anonymous, obscene, and racist telephone call to a state legislator while on duty was properly terminated; Connecticut Supreme Court rejects arbitrator's award reinstating officer and reducing the penalty to 60 days suspension without pay. Connecticut v. AFSCME, Council 4, Local 387, #16121, 747 A.2d 480 (Conn. 2000).
     279:35 Federal Age Discrimination in Employment Act (ADEA) may not constitutionally be applied to state employees; Congress exceeded its authority in attempting to create a remedy for age discrimination which went beyond what the Supreme Court had previously ruled concerning equal protection of law in age discrimination. Kimel v. Florida Bd. of Regents, #98-791, 98-796, 120 S. Ct. 631 (2000).
     277:12 Termination of female correctional officer at the end of her probationary period was not sex discrimination when her performance evaluations showed that she was "not qualified" for the job; under these circumstances, the court did not need to reach the issue of whether male co-workers were treated differently. Warfield v. Lebanon Correctional Institution, #98-3588, 181 F.3d 723 (6th Cir. 1999).
     282:84 Correctional officer terminated for allegedly stealing minor items from his employer received adequate due process prior to termination and had adequate post-termination state remedies to seek reinstatement and back pay if he were terminated without just cause. Schacht v. Wisconsin Dept. of Corrections, No. 96-3633, 175 F.3d 497 (7th Cir. 1999).
     282:85 Former correctional officer was properly removed from list of those eligible for reappointment based on a factual finding that he had accepted gifts or gratuities from prisoners in exchange for favors. Slyke v. Onondaga County Dept. of Personnel, 688 N.Y.S.2d 312 (A.D. 1999).
     [N/R] Correctional employer may have a duty to prospective employers and foreseeable third persons not to misrepresent material facts when making an employment recommendation about a present or former employee if a substantial risk of physical harm to third persons by the employee is foreseeable. Davis v. Board of County Commissioners of Dona Ana County, #19,176, 987 P. 2d 1172 (N.M. App. 1999).
     273:131 U.S. Supreme Court, in three decisions, narrowly interprets federal disability discrimination statute; plaintiff employees whose disabilities may be corrected by medication or devices such as eyeglasses will generally not be disabled persons entitled to protection against employment discrimination. Murphy v. United Parcel Service, Inc., #97- 1992, 119 S. Ct. 2133 (1999); Sutton v. United Air Lines, Inc., #97-1943, 119 S. Ct. 2139 (1999); Albertsons, Inc. v. Kirkingburg, #98-591, 119 S. Ct. 2162 (1999).
     273:132 Congress did not have constitutional authority under Article I of the Constitution to abrogate states' sovereign immunity to lawsuits in their own state courts; probation officers could not sue state of Maine, in either federal or state court, for overtime pay they claimed they were owed under the federal Fair Labor Standards Act (FLSA). Alden v. Maine, #98-436, 119 S. Ct. 2240 (1999).
     274:147 Co. jail must bargain with jail nurses over the subject of whether to place last names of employees on required name tags; nurses argued that placing their last names on nametags put the safety of their families at risk. King Co. v. Wash. State PERC, #42854-3-1, 972 P.2d 130 (Wash. App. 1999).
     274:147 Correctional officer who flew Nazi flag at his home off-duty was properly reinstated in job when no actual harm was shown in his workplace and his evaluations were outstanding. Arbitration bet. N.Y. St. Law Enf. Off. Union and New York, #82571, 694 N.Y.S.2d 170 (A.D. 1999).
     275:165 Requiring female correctional officers to wear pants on duty, and forbidding them to wear skirts, did not violate their right to religious freedom when pants requirement was justified by need to properly secure protective vests needed when responding to emergencies. Seabrook v. City of New York, #99 Civ. 9134, 1999 U.S. Dist. LEXIS 13729 (S.D.N.Y.).
     267:37 Prison chaplain's conversations with prison official outside his chain of command concerning decision to have someone else, rather than him, tutor an illiterate prisoner was not protected First Amendment speech. Button v. Kibby-Brown, #97- 2832, 146 F.3d 526 (7th Cir. 1998).
     269:69 Prison officials acted properly in firing prison guard who appeared on television to promote a Ku Klux Klan rally; identification of guard as a Klan supporter could incite racial violence at the prison and the prison's interest in maintaining security and preventing violence outweighed any First Amendment interest the guard had in expressing his views. Weicherding v. Riegel, #97-3991, 160 F.3d 1139 (7th Cir. 1998).
     270:84 Prison employee's demands for a personal security guard to protect him did not involve a matter of public concern entitling him to protection, under the First Amendment, from firing in alleged retaliation for raising the issue. Kohl v. Smythe, 25 F.Supp.2d 1124 (D. Hawaii 1998).
     260:118 Federal appeals court rules that two jail employees were legitimately discharged by incoming sheriff based on job performance and "public perception" of job performance, rather than racial discrimination; one employee's comments to federal trial court concerning jail conditions were not protected speech under the First Amendment, since they were not made as a "concerned citizen" but based on orders from his superior. Day v. Johnson, 119 F.3d 650 (8th Cir. 1997), cert. denied, 118 S.Ct. 707 (1998).
     263:163 Despite the presence, in terminated correctional officer's suit, of several claims against the State of Wisconsin barred by the Eleventh Amendment, correctional defendants could still properly remove the entire lawsuit from state to federal court, and the federal trial court had jurisdiction to consider and rule on remaining claims not barred by Eleventh Amendment immunity. Wisconsin Dept. of Corrections v. Schacht, #97-461, 118 S.Ct. 2047 (1998).
     270:84 Correctional officer's criticism, to inmate, of other officer's conduct was proper grounds for his termination; any First Amendment interest of officer was outweighed by strong interest of correctional department in safe and efficient running of prison. Dept. of Corrections v. Derry, 510 S.E.2d 832 (Ga. App. 1998).
     273:134 Correctional officer was properly fired for going to fellow officer's house while off-duty and threatening to kill him if the fellow officer ever was "caught" again at his house around his wife or son; terminated officer's acquittal on criminal charges did not alter result. Dept. of Corrections v. Glisson, #A98A1701, 508 S.E.2d 714 (Ga. App. 1998).
     261:132 Spouse of man killed by jail inmate during escape from custody at private medical clinic stated claim for failure to protect under Arkansas state civil rights law; lawsuit alleged that defendants were consciously indifferent to risk of having violent and suicidal prisoner transported to clinic by one deputy. Shepherd v. Washington Co., 962 S.W.2d 779 (Ark. 1998).
     262:148 Officer properly used deadly force to shoot and kill escaped prisoner who was attempting to evade recapture, even though he did not think that the prisoner posed an immediate threat of physical harm to anyone; Eighth Amendment prohibition on cruel and unusual punishment, rather than Fourth Amendment restrictions on use of deadly force, provided proper legal standard to apply to officer's actions. Gravely v. Madden, 142 F.3d 345 (6th Cir. 1998).
     256:54 Co. liable for $1.85 million for wrongful death of man killed in his home by escaped prisoner and for $350,000 to wife who witnessed her husband's murder, as well as for $200,000 to wife for her false imprisonment by escapee. Duke v. Cochise Co., 938 P.2d 84 (Ariz. App. 1996), review denied (1997).
     259:99 Correctional officers at Wisconsin prison were immune from liability for injuries minor suffered when struck by state- owned van driven by escaping prisoner; officers had "wide latitude" and discretion in determining how to deal with attempted escape. Ottinger v. Pinel, 572 N.W.2d 519 (Wis. App. 1997).
     258:85 Termination, without a hearing, of correctional officer for allegedly providing false information on his job application did not violate his due process rights when the defendants in his lawsuit had not revealed the reasons for his termination to any prospective employers. Merritt v. Reed, 120 F.3d 124 (8th Cir. 1997).
     243:39 Federal appeals court found that correctional officials did not violate constitutional right of equal protection by giving preference, for appointment to position of lieutenant in "boot camp" for "shock incarceration" of young prisoners, to black male applicant over white applicants who scored higher on promotion test; preference was justified by penological interest in success of program, given that 68% of camp prisoners were black. Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996).
     246:83 State correctional department's policy prohibiting guards from writing letters to prisoner review board supporting prisoner's petition for clemency might violate First Amendment if department failed to provide rational basis for policy; federal appeals court orders further factual hearing on reason for policy. Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996).
     247:103 Meal breaks do not have to be "scheduled" or "occur at a regular time" in order to be bona fide for purposes of the Fair Labor Standards Act; correctional officers, whose meal breaks sometimes changed, based on circumstances, were not entitled to overtime for daily half hour meal break which occurred during eight and a half hour day. Bates v. Dept. of Corrections, 81 F.3d 1008 (10th Cir. 1996).
     249:133 Once Department of Corrections presented evidence that officer appeared to be asleep on the job, officer had burden of showing that he was not in order to oppose termination. Miss. Dept. Corrections v. McClee, 677 So.2d 732 (Miss. 1996).
     [N/R] Federal trial court orders union to refund dues paid by correctional officer who objected, on religious grounds, to union position on abortion and death penalty; awards plaintiff officer $45,160 in attorneys' fees and costs. E.E.O.C. v. AFSCME C-82, 937 F.Supp. 166 (N.D.N.Y. 1996) and subsequent decision (awarding attorneys' fees), 1996 U.S. Dist. Lexis 17535 (Nov. 12, 1996).
     229:7 Federal trial court rejects N.Y. correctional department's arguments that requiring Rastafarian correctional officers to cut their modified dreadlocks furthered a compelling governmental interest in security, discipline and esprit de corps. Brown v. Keane, 888 F.Supp. 568 (S.D.N.Y. 1995). [Cross- reference: Religion].
     229:7 State of Ohio reaches $850,000 settlement in wrongful death suit brought by surviving family of correctional officer killed by rioting prisoners during eleven day prison disturbance. Vallandingham v. Ohio, Ohio state trial court, reported in Chicago Daily Law Bulletin, p. 3, August 7, 1995.
     231:37 Correctional officer's rights were not violated when Department of Corrections required him to wear American flag patch on his uniform shirt; officer could be disciplined for failure to comply with requirement. Troster v. Pennsylvania State Dept. of Corrections, 65 F.3d 1086 (3d Cir. 1995).
     232:52 Warden did not violate correctional officer's due process rights by ordering him to submit to psychiatric examination after co- workers complained that officer had threatened them with physical harm; any privacy interest of officer's was outweighed by requirement for stable prison work force. Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995).
     233:68 Medical evidence was insufficient to show that being taken hostage by inmates some 16 years earlier was the cause of correctional officer's disablement; workers' compensation benefits were properly denied. Ferber v. N.Y. Dept. of Corrections, 632 N.Y.S.2d 685 (A.D. 1995).
     234:86 Jailer who accidentally shot himself in the leg and foot while cleaning his weapon at home was entitled to workers' compensation benefits; employer required him to keep his weapon clean and failed to provide an area at workplace for such cleaning, so that he was acting in the course and scope of his employment while cleaning it at home. Esis, Inc. Servicing Contractor v. Johnson, 908 S.W.2d 554 (Tex. App. 1995).
     235:101 N.J. to pay $3.74 million to correctional employees who alleged racial and sexual harassment and discrimination in the workplace; settlement includes $900,000 in attorneys' fees. Holland v. N.J. Dept. of Corrections, No. 93- 1683, 34 (1655) G.E.R.R. (BNA) 324 (D.N.J. 1996).
     239:163 Federal trial court rules that Congress did not have the authority, under the Interstate Commerce Clause, to apply the Fair Labor Standards Act (FLSA) to state employees; dismisses FLSA lawsuit brought by Kansas correctional employees for lack of jurisdiction, finding suit barred by Eleventh Amendment immunity of state. Adams v. Kansas, N. 94-4201-RDG, 1996 U.S. Dist. Lexis 9462 (D. Kan. June 24, 1996).
     239:164 Requirement that prison guard undergo "mace training," involving her being sprayed in the face with pepper mace did not violate her right to due process or privacy or shock the conscience; federal court finds requirement "rationally related" to correctional department's interest in encouraging officers to "take care" when using pepper mace, to discourage "indiscriminate use" of it, and to teach the importance of "prompt remediation" of its effects. Ryder v. Freeman, 918 F.Supp. 157 (W.D.N.C. 1996). [Cross-reference: Chemical Agents].
     [N/R] Sergeant was properly suspended for failing to make periodic checks on inmate. Currans v. Linn Co., 540 N.W.2d 469 (Iowa App. 1995).
     218:20 Probationary correction officer suffering from severe depression was properly terminated; termination was not because she sought help under the Employee Assistance Program, but rather because of her "psychological unfitness" for job and prolonged absence. Butler v. Abate, 612 N.Y.S.2d 19 (A.D. 1994).
     221:69 Termination of corrections officer who refused to cut short his pony tail violated his right to religious freedom as a practitioner of a Native American religion; New York appellate court orders reinstatement. Rourke v. N.Y. Dept. of Corrections, 201 A.D.2d 179, 615 N.Y.S.2d 470 (1994).
     221:70 Update: Nevada Department of Prisons' interest in preventing employees from bringing discredit upon the department outweighed a prison psychologist's limited right to commercial free speech concerning his business venture of a theme-park legal brothel. Knapp v. Miller, 863 F.Supp. 1221 (D. Nev. 1994).
     223:101 Supervisor of juvenile detainees suffering from bipolar disorder (manic-depression) was properly terminated after she suffered a mood swing which resulted in injury to one detainee and his possible suicide attempt; her termination was not disability discrimination under Indiana state law. Ind. Civ. Rights Commn. v. Delaware Cty. Cir. Court, 642 N.E.2d 541 (Ind. App. 1994).
     223:102 California city jailers injured on the job were not entitled to benefits under state statute providing up to one year of fully paid disability leave for personnel engaged in "active law enforcement services." United Public Employees v. City of Oakland, 31 Cal.Rptr.2d 610 (Cal.App. 1994).
     224:117 Probationary corrections officer was properly terminated for wearing a t-shirt with a swastika and the words "White Power" at a barbecue with fellow officers and firing a weapon after becoming inebriated. Lawrenz v. James, 852 F.Supp. 986 (M.D. Fla. 1994).
     225:132 Correctional officers were entitled to be paid for their meal periods, during which they could not leave prison grounds, read, or go to their vehicles. Brinkman v. Dept. of Corrections, 21 F.3d 370 (10th Cir. 1994).
     225:132 Firing of corrections officer for gambling with an inmate was not an excessive penalty. McFarland v. Abate, 611 N.Y.S.2d 153 (A.D. 1994).
     225:133 Update: Female correctional officer awarded $7,500 in damages for invasion of privacy based on male supervisor's observation of her from ceiling of prison restroom. Speer v. Ohio Dept. of Rehab. & Corr., 646 N.E.2d 273 (Ohio Ct. Cl. 1994).
     226:151 Update: Nevada Supreme Court upholds determination that dismissal was too severe a sanction for prison psychologist who used inmates to mail out advertising materials for his planned theme-park legal brothel. Knapp v. Nev. Dept. of Prisons, 892 P.2d 575 (Nev. 1995).
     227:165 Retirement Commission was not bound by psychiatrist's opinion that correctional officer's alleged psychological disability was caused by work related stress; despite lack of contradicting medical evidence, Commission determined that incidents which officer related to psychiatrist had not taken place. Viele v. Div. of Retirement, 642 So.2d 1124 (Fla. App. 1994).
     227:165 Federal appeals court upholds use of rule prohibiting social relationships between correctional officers and inmates to force female officer to choose between her job and severing her relationship with a male prisoner she wanted to marry; fact that prisoner had been transferred to another facility at the time did not alter result. Keeney v. Heath, 57 F.3d 579 (7th Cir. 1995).
     Prison psychologist first terminated and then reinstated but demoted after he began to pursue business venture in western theme-park legal brothel stated a valid claim for violation of his First Amendment right of free commercial speech in his civil rights lawsuit against state prison officials. Knapp v. Miller, 843 F.Supp. 633 (D. Nev. 1993).
     Form female correctional officer signed consenting to future searches did not justify male supervisor's surveillance of her in the restroom. Speer v. Ohio Dept. of Reh. & Corr., 89 Ohio App. 3d 276, 624 N.E.2d 251 (1993).
     Correctional officer was entitled to an evidentiary hearing as to whether he had violated sick leave policies, despite prior signing of agreement placing him on limited probation. Tankard v. Abate, 603 N.Y.S.2d 951 (Sup. 1993).
     Indiana prison matron awarded $50,546.28 because she was not paid the same amount as a deputy sheriff between 1972 and 1982 as required by state statute; appeals court rules that matron's "contract of employment" was written contract subject to 20-year statute of limitations, rather than oral contract subject to twoyear statute. Gibson Co. v. State Ex Rel. Emmert, 609 N.E.2d 1179 (Ind. App. 1993).
     Correctional officer terminated after his driver's license was suspended following an eleventh conviction for driving under the influence of alcohol was not subjected to "handicap discrimination" as an alcoholic. Sizemore v. Dept. of Rehab. & Corr., 629 N.E.2d 1096 (Ohio Ct. Cl. 1992), reported 1994.
     Correctional officer's disability was caused by workplace stress resulting from the incarceration of his son at the jail and inmates' and fellow officers' taunting, rather than his preexisting alcohol abuse, depression, and marital difficulties; officer was entitled to workers' compensation benefits after he was terminated for fighting with inmate who allegedly threatened to sodomize his son. Beames v. Warren Co. Sheriff's Dept., 593 N.Y.S.2d 127 (A.D. 1993).
     U.S. Justice Department awards approximately $120,000 to family of state prison guard who died after contracting tuberculosis on the job. National Law Journal, p. 6 (March 1, 1993).
     Jailer terminated because of hearing disability awarded $73,974.80 in back pay, prejudgment interest, $18,900 in attorneys' fees, reinstatement and "front pay" until reinstatement on disability discrimination claim under Texas state law. City of Austin v. Gifford, 824 S.W.2d 735 (Tex. App. 1992).
     Prison food service worker injured on the job was not entitled to full salary benefits under state statute providing such compensation for those injured while doing "guard" duties. Stuart v. Dept. of Correction, 601 A.2d 539 (Conn. 1992).
     Probationary prison guard could be discharged on the basis of his abusive words (including ethnic epithets) and conduct directed towards a private citizen while off-duty, away from the prison, and out of uniform. Hawkisn v. Dept. of Public Safety, 325 Md. 621, 602 A.2d 712 (1992).
     Female civilian jailer fired without hearing did not show violation of due process, sexual harassment or discrimination; plaintiff "welcomed the sexual hijinx" of her co-workers. Reed v. Shepard, 939 F.2d 484 (2nd Cir. 1991).
     Firing of probationary correctional officer for testifying for the defense in a death penalty hearing violated the First Amendment. Ziccarelli v. Leake, 767 F.Supp. 1450 (N.D. Ill. 1991).
     Termination of correctional officer found sleeping on duty after taking pain medication for arthritic knee was not arbitrary or capricious. Nebraska Dept. of Correctional Services v. Hansen, 283 Neb. 233, 470 N.W.2d 170 (1991).
     Prison officials who took prompt effective disciplinary action after female employee complained of alleged sexual harassment by correctional officer were not liable for damages. Hirschfeld v. N.M. Corrections Department, 916 F.2d 572 (10th Cir. 1990).
     Psychological assistant at penitentiary was not entitled to workers' comp benefits for mental stress arising from hostage situation. Fenwick v. Oklahoma State Penitentiary, 792 P.2d 60 (Okl. 1990).
     Dismissal of correction officer who used excessive force against inmate was disproportionate to offense and "shocking." Allman v. Koehler, 554 N.Y.S.2d 842 (A.D. 1990).
     Female correctional officer who suffered depression from seeing male inmates masturbating could collect unemployment benefits after resigning. State Dept. of Corrections v. Stokes, 558 So.2d 955 (Ala. Civ. App. 1990).
     Court finds wrong standard was applied in finding handicap discrimination for failure to hire "obese" correctional officer. OSCI v. Bureau of Labor and Industries, 780 P.2d 743 (Or. App. 1989).
     Jail cook not entitled to law enforcement presumption on heart attack; no measurable connection between employment and disability. Glover v. Bd. of Retirement, 263 Cal.Rptr. 224 (Cal.App. 1989).
     Department of corrections counselor's providing pornographic video tapes to inmates did not justify dismissal. Gouge v. Civil Service Com'n, 384 S.E.2d 855 (W.Va. 1989).
     Correctional officer could not be terminated under personnel law for agreeing to split cost of bag of heroin with former inmate and assaulting former inmate when deal fell through. Dept. of Corrections v. Local No. 246, 554 A.2d 319 (D.C. App. 1989).
     Illegally seized evidence admissible in correctional officer's discharge proceedings, unless obtained in bad faith. Sheetz v. City of Baltimore, 553 A.2d 1281 (Md. 1989).
     Use of gender-specific sexual terms by supervisor constituted sexual harassment; discharged employee reinstated, awarded $124,825. Dept. of Corr. v. Human Rights Com'n, 534 N.E.2d 161 (Ill. App. 1989).
     Service technician at correctional center properly terminated after kicking, shoving and throwing beverage at inmate. Monie v. State Personnel Board, 424 N.W.2d 874 (Neb. 1988).
     Bureau of prisons not required to bargain with union over rule that guards wear neckties and blazers on job. American Fed. of Gov. Emp. Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988).
     Imposition of harsher discipline on some guards than other guards involved in incident where inmates escaped was justified by prior unsatisfactory work evaluations. Anaya v. New Mexico State Personnel Bd., 762 P.2d 909 (N.M. App. 1988).
     Discharged deputy sheriff who claimed she was fired because she is a lesbian did not state an equal protection claim. Todd v. Navarro, 698 F.Supp. 871 (S.D. Fla. 1988).
     Federal appeals court reverses prior decision that a refusal to assign male officers to women's prison was sex discrimination. Torres v. Wisconsin Department of Health and Social Services, 859 F.2d 1523 (7th Cir. 1988).
     Detention officer rendered psychologically unfit for contact with inmates by off-the-job injury can be dismissed. Sienkiewicz v. Santa Cruz Co., 240 Cal.Rptr. 451 (Cal.App. 1987), reported 1988. Widow of correctional employee killed in Attica riot could not withdraw claim for workers' comp and file damages lawsuit after receiving benefits. Hardie v. Attica Correctional Facility, 534 N.Y.S.2d 492 (A.D. 1988).
     Termination of prison guard for failure to prevent escape of inmates was unsupported by sufficient evidence. Whipple v. Dept. of Corrections, 518 N.E.2d 386 (Ill. Ap. 1987).
     Correctional employee discharged for sexually harassive conduct entitled to new hearing. Zavala v. Arizona State Personnel Board, 757 P.2d 94 (Ariz. App. 1987).
     Federal court enjoins random drug testing of federal prison employees; urinalysis testing for those involved in on-the-job accidents also enjoined. American Fed. of Gov. Em. Council 33 v. Meese, 688 F. supp. 547 (N.D. Cal. 1988).
     Department of corrections investigator not entitled to qualified immunity for asking irrelevant questions concerning sexual history of female employee charging sexual assault by fellow employee. Eastwood v. Dept of Corrections, 846 F.2d 627 (10th Cir. 1988).
     Prison teacher could not be suspended for failing to find drugs planted on him by inmate. Commonwealth v. Ehnot, 532 A.2d 1262 (Pa. Cmwlth. 1987).
     Impermissible to use evidence that supervisor ogled and kissed female inmates in proceeding to dismiss for alleged sexual intercourse with female prisoner. McGowan v. Illinois Department of Corrections, 518 N.E.2d 630 (Ill. App. 1987).
     Dept. of Corrections could fire deputy superintendent for sexual harassment; punishment not too severe. Oare v. Coughlin, 520 N.Y.S.2d 658 (A.D. 1987).
     Refusal to assign male correctional officers to living units in womens' prison was sex discrimination. Torres v. Wisconsin Dept. of Health & Social Services, 838 F.2d 944 (7th Cir. 1988).
     Prison employee could not be criminally convicted of official misconduct for allowing inmate to visit wife in motel room. Thomas v. State, 515 N.E.2d 880 (Ind. App. 1987).
     Female correctional counselor awarded $2,500 damages plus back pay, front pay and attorney's fees for sexual discrimination in promotion. Shaw v. Nebraska Dept. of Correctional Services, 666 F.Supp. 1330 (D. Neb. 1987).
     Chances of sexual assaults on female guards doesn't justify excluding them from all male units; judgment entered in female guards' favor. Griffin v. Michigan Dept. of Corrections, 654 F.Supp. 690 (E.D. Mich. 1982).
     Mandatory drug testing for all jail employees unconstitutional if conducted without "reasonable suspicion". Taylor v. O'Grady, No. 86-C- 7179 (N.D. Ill. 1987), reported in the Chicago Daily Law Bulletin, Page 1, September 23, 1987.
     Co. jail security officers excluded from binding arbitration act which applies to fire and police personnel; strike by jail officers doesn't threaten community safety, as do police strikes, court finds. Capitol City Lodge v. Ingham Co., 399 N.W.2d 463 (Mich. App. 1986).
     Prison warden was at-will employee and neither statute for employee manual created property interest in continued employment; however, fellow administrators may have "created" a property interest through assurances. Christian v. McKaskle, 649 F.Supp. 1475 (S.D. Tex. 1986).