Federal appeals court dismisses a suit
filed by a NYPD applicant who was rejected as psychologically unfit.
A three-time rejected applicant with the NYPD filed suit in federal
court and also brought an action for state judicial review (which is still
pending).
He alleged that the NYPD violated his constitutional rights to procedural
and substantive due process "by arbitrarily and capriciously determining
that he was psychologically unfit for hire as an officer" and by making
"derogatory, stigmatizing, defamatory, and untrue statements to other
prospective employers."
The federal trial court dismissed the action, and a three-judge appeals
panels has summarily affirmed.
First, he lacks a property interest to a prospective job. "As an applicant,
he has only an unprotected unilateral expectation of employment."
Second, the state provides a statutory review of public employment rejections.
Article 78 of the N.Y. Civil Practice Law provides a meaningful post-deprivation
remedy.
Third, he has no factual evidence indicating specifically what the NYPD's
statements were, and speculates only that his failure to find other work
was a consequence of NYPD actions.
Johnson v. N. Y. City Police Dept., #01-7247, 2001 U.S. App. Lexis 26167
(Unpublished, 2nd Cir.).
Click here
to view the court's decision on the AELE website.
Alabama Supreme Court rejects a lawsuit
against a city because of an allegedly improper I-A investigation conducted
by a private detective agency. Firm was an "independent contractor."
A city employee in Alabama was investigated for his outside business
activities by a private investigation firm, hired by the mayor. Surveillances
continued for almost two years until his suspension, based on that investigation.
An administrative hearing officer held in favor of the employee. In a lawsuit
filed against the investigation firm and the mayor, the employee alleged
fraud, misrepresentation, negligence, and wantonness.
He claimed that the city failed to "properly supervise and review"
the actions of the investigation, causing him to suffer humiliation, embarrassment,
and financial expense. He also claimed the city provided false information
at the hearing.
The city successfully argued that the investigation firm was not an agent
of the city, but an independent contractor. The trial court dismissed the
action.
On appeal, the Alabama Supreme Court agreed, 5-to-0. "The test for
agency is whether the alleged principal has retained a right of control
over the actions of the alleged agent."
In determining whether a person is an independent contractor, the court
used a four factors "right-of-control" test:
(1) direct evidence of the right or exercise of control;
(2) the method of payment used;
(3) whether the alleged principal had the right to terminate employment;
and
(4) the right to control another's time.
The justices said that the employee "failed to present any evidence
of an agency relationship." Agency cannot be presumed, they said,
and the trial court properly found the investigation firm was an independent
contractor.
Dickinson v. City of Huntsville, #1001271, 2001 Ala. Lexis 426, 18 IER Cases
(BNA) 84 (2001).
To view the opinion on the findlaw website, click here.
Editor's Note: Not all states would agree with this decision. A
California appellate court has held that an overly intrusive investigation
can give rise to an action for invasion of privacy and that the person
or entity which hired the investigator can be vicariously liable for his
intentional torts. Noble v. Sears, Roebuck & Co., 33 Cal. App.3d 654,
1973 Cal. App. Lexis 922, 109 Cal.Rptr. 269 (1973).
Sears employed lawyers in a personal injury matter, who retained the services
of an overzealous licensed private investigator. The "independent
contractor" defense was rejected, although the California court noted
that other states have ruled differently.
» For a comparison of jurisdictions, see ALR Annotation: "Liability
of one hiring private investigator or detective for tortious acts committed
in course of investigation," 73 A.L.R.3d 1175, §§ 2-7, 7.
Federal court rejects most of a detective's lawsuit challenging
a disciplinary investigation, suspension and arrest, because he failed
to file a grievance under the mechanism established in the bargaining agreement.
A parallel claim against the union for inadequate representation was allowed
to stand.
A police detective in Connecticut was disarmed, ordered to submit to
a drug test, reassigned to limited duty. He was arrested for forgery and
unlawful possession of a controlled substance; he was suspended from pay
and duty.
The charges were subsequently dropped and he sued his superiors for an
intrusive I-A investigation. He also named the union and officials, alleging
a breach of the duty of fair representation because they did not defend
him through the ordeal.
The federal court allowed some of his pleadings to stand; others were dismissed.
The defendants argued that the detective was a member of the bargaining
unit, and the CBA provides for grievance and arbitration procedures to
settling disputes. He failed to use the grievance process, and thus did
not avail himself of his administrative remedies.
The court noted that a plaintiff in a civil rights case usually is not
required to exhaust his administrative remedies before bringing suit. Patsy
v. Board of Regents of Florida, 457 U.S. 496, 515, 102 S.Ct.
2557 (1982).
The court went on to say that the Patsy
holding does not apply in a procedural due process suit if the plaintiff
is an employee; Aronson v. Hall, 707 F.2d 693, 694 (2d Cir. 1983).
The fact that he also is suing the union does not excuse this omission.
The court granted the defendants' motion to dismiss as to the procedural
due process claim, as well as a breach of contract claim.
A claim for emotional distress was rejected, because he failed to allege
extreme and outrageous conduct in support of that allegation. A First Amendment
claim also was rejected because he failed to allege that he petitioned
the government as a citizen on a matter of public concern.
He also complained that I-A investigators illegally seized records of his
prescription drug transactions from various pharmacies without a search
warrant, arrested him without probable cause and maliciously prosecuted
him for criminal offenses.
The court said, even if a state court has found the searches to be unlawful,
defendants can still avoid liability under the doctrine of qualified immunity.
The police union was sued because it did not challenge the detective's
suspension or take action to effectuate his reinstatement at any time.
The union responded that it was not liable because the detective failed
to exhaust his administrative remedies available under the bargaining agreement.
The detective responded that the law does not require him to exhaust intra-union
remedies, prior to bringing suit against the union, because doing so would
be unreasonable and futile.
The court allowed this count to stand. It is unnecessary to exhaust administrative
remedies or contract remedies, "if the employee can prove that the
union as bargaining agent breached its duty of fair representation in its
handling of the employee's grievance." Vaca
v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903 (1967); Johnson v.
General Motors, 641 F.2d 1075 (2d Cir. 1981).
Russo v. City of Hartford, #3-97-CV-2380, 158 F.Supp.2d 214, 2001 U.S.
Dist. Lexis 14297 (D. Conn. 2001).
Click here to
view the court's rulings on the AELE website.
Editor's Note: Unlike a general arbitration clause, the right to
file a grievance and proceed to arbitration can only provide partial relief,
such as restoration of lost pay and assignment rights. Unless the bargaining
agreement so provides, the arbitrator cannot award compensatory or punitive
damages for constitutional violations. An aggrieved member of the bargaining
unit would still have to file suit, but much later.
Unions may want to overcome this hurdle by seeking to incorporate language
into the CBA allowing direct access to the courts for civil rights violations.
Arbitrator sustains a charge of repeatedly
failing to attend mandatory staff meetings, but reduces the punishment
to an 11-month suspension.
A corrections officer was fired for his failure to attend required
staff and safety meetings, a failure to properly complete time reports,
and minor unprofessional conduct. The union claimed the punishment was
excessive.
The arbitrator found that the grievant had accumulated an unsatisfactory
record during his two years of employment. However, the deficiencies were
insufficient to meet the standard of just cause.
He ordered management to conditionally reinstate the officer without back
pay or benefits. An eleven-month disciplinary lay-off was warranted.
Montana Dept. of Corr. and Montana Pub. Empl. Assn., 116 LA (BNA) 410 (Prayzich,
2001).
Click here
to view the arbitrator's award on the AELE website.
Federal appeals court upholds a multi-step
search of the computer issued to a state employee, who was later demoted
for loading tax returns related to his secondary occupation.
A New York state employee, who moonlighted as a tax preparer, was the
subject of an I-A investigation for misuse of official time. After informing
the employee that he was under investigation and that the computer in his
office would be examined, he was observed deleting items from the computer's
directories.
He was then interrogated, and admitted to improperly sharing single-user
tax software and printing personal income tax returns from the state-issued
computer.
After a transfer and demotion, he sued in federal court, alleging Fourth
Amendment and due process claims. The trial judge noted that allegations
in an anonymous letter were sufficient to give rise to the reasonable suspicion
that the plaintiff was engaging in his private tax preparation business
during work hours, using a state computer for that business, and that an
examination of the computer would produce evidence of work-related misconduct.
On appeal, a three-judge panel concluded that the plaintiff had a reasonable
expectation of privacy because:
1. He occupied a private office with a door.
He had exclusive use of the desk, filing cabinet, and computer and did
not share the computer with other employees.
2. Management did not have a general practice
of routinely conducting searches of office computers. It had not
placed employees on notice that they lacked an expectation of privacy in
the contents of state-issued computers.
3. A policy prohibiting theft did not apply.
State policy did not prohibit the storage of personal materials in employee's
offices or computers. The policy prohibited "using" state equipment
"for personal business" without defining the term.
However, an I-A search to identify whether he was using non-standard software
was reasonably related to the investigation of the allegations of workplace
misconduct. Although the anonymous letter did not specifically allege a
misuse of a computer, it did allege that the he spent a significant amount
of time on non government business.
The panel found that the scope of the initial search was not excessively
intrusive in light of the nature of the misconduct. Investigators only
printed out a list of file names found on his computer. They did not open
any files.
After the first search had established the computer contained an unauthorized
tax program, they reexamined the computer several times. There is no evidence
that investigators examined files containing individual tax returns that
may have been saved on the computer.
The panel affirmed the trial court's summary judgment in favor of the state.
Leventhal v. Knapek, #00-9306, 266 F.3d 64. 2001 U.S. App. Lexis 21303,
17 IER Cases (BNA) 1697 (2nd Cir.).
Click here
to view the decision on the FindLaw website.
Arbitrator reinstates a firefighter
who was terminated for unlawful drug use, because he was placed in a diversion
program, which will remove the conviction. Back pay was disallowed; the
city can test him for drug use and discharge him if he fails to complete
the diversion program or tests positive for drug use.
The grievant and his girlfriend were parked in a car outside a bowling
alley, apparently engaged in sexual activity. Sheriff's deputies were called,
and the grievant signed a "Consent to Search" form. He then identified
himself as a fire captain, admitted to possession of methamphetamine, and
said that he had been using the drug for approximately ten years.
He was later placed in an 18-month diversionary program, which will likely
prevent a criminal conviction. However, management conducted an internal
investigation and the captain was terminated. The union grieved in his
behalf, and the matter went to binding arbitration.
The arbitrator said he was bound by California Labor Code §432.7,
which prevents employers from utilizing, in a termination, any record of
arrest that does not result in a conviction.
In light of the grievant's long history of good service, and the city's
failure to show that the off-duty drug use impaired his work during the
working time, a conditional reinstatement was proper.
Noting that it is still possible the grievant could be convicted if he
fails to complete the drug diversion program, full reinstatement would
not be appropriate. Further, the city should be allowed to test him for
drug use during the diversion period.
Finally, the arbitrator noted that "the grievant's improper behavior
gave rise to events leading to his termination" and he "must
bear responsibility for his actions." He denied him over 8 months
of back pay and benefits.
Stockton (City of) and Stockton Firefighters L-1229, CSMCS Case #ARB-00-0413,
116 LA (BNA) 390 (Staudohar, 2001)
Click here to view
the arbitrator's award on AELE's website.
Federal appeals court concludes that
cross-trained firefighter-EMS personnel were still employees engaged in
fire protection services for overtime purposes.
In Norfolk, Virginia, both fire and EMS units respond to fire emergencies.
If an EMS unit is the first on the fire scene, it may fight the fire, leaving
medical services to be performed by a back-up rescue unit.
If a fire unit is first to the scene, the EMS unit performs medical services
if it is not otherwise needed.
Firefighters who were cross-trained as EMS personnel sued for overtime,
claiming that the § 207(k) exemption did not apply to them.
A three-judge appellate panel held that all of their tasks were exempt,
as either fire protection activities per se or as tasks performed "incident
to or in conjunction with their fire protection activities." When
cross-trained EMS personnel fight fires, whether on duty with a fire unit
or with an EMS unit, they are engaged in fire protection activities.
Even when performing medical services at non-fire emergencies, EMS-firefighters
are included in the FLSA's exemption from overtime pay requirements.
Adams v. City of Norfolk, #00-2269, 2001 U.S. App. Lexis 26034 (4th Cir.).
Click here
to view the decision on the FindLaw site.
Divided appeals panel opens the door
for mentally disabled former employees to sue, under the ADA, if their
benefits are less than those disabled for physical reasons.
A panel of the 11th Circuit has split 2-to-1, holding that an ex-employee
is entitled to enforce an ADA claim against his former employer. The employer
had argued that the ADA was enacted to help disabled people get and keep
jobs, and not to help persons who are no longer able to work to collect
disability pay.
The court went on to decide whether an employer can sponsor a disability
plan that pays different benefits for physical and mental illness. The
employer's Long Term Disability Plan provided benefits, for a maximum of
24 months, to employees who were totally disabled from mental illness.
The same disability benefits are available to employees with physical illnesses
until they reach age 65.
The panel looked at the statute, legislative history and the "safe
harbor" provisions; the majority concluded that if an employer had
differing disability benefits for mental and physical disabilities prior
to the enactment of the ADA, the pre-existing plan is lawful.
If, as here, an employer adopts the mental health cap following the passage
of the ADA, the plaintiff can offer evidence that the cap was an intentional
subterfuge to evade the purposes of the law.
The EEOC's position was, that to justify differing benefits, an employer
must show increased costs that are "demonstrably attributable"
to that disability.
Johnson v. K Mart Corp., #99-14563, 2001 U.S. App. Lexis 24923 (11th Cir.).
Click
here to view the court's divided opinions on the FindLaw website.
Editor's Note: Three other circuits have held that the ADA is not
violated when a private or public employer varies benefits or coverage
based on the type of disability. Ford v. Schering-Plough Corp., 145 F.3d
601, 608 (3d Cir. 1998), cert. den., 119 S.Ct. 850 (1999); Lewis v. K Mart
Corp., 180 F.3d 166, 170 and Rogers v. Dept. of Health, 174 F.3d 431, 436
(both 4th Cir. 1999); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006,
1019 (6th Cir. en banc 1997), cert. den., 118 S.Ct. 871 (1998); EEOC v.
CNA Ins., 96 F.3d 1039, 1045 (7th Cir. 1996).
California judge sets aside a $945,000
awarded to a lesbian police officer who claimed discriminatory discipline
and termination.
In 1995, the plaintiff complained to supervisors about her discomfort
with strip searches of female arrestees. Instead of getting advice from
her supervisors for the problem, she was given a letter of reprimand.
She then filed a bias complaint with the California Dept. of Fair Employment
in 1996 and sued the city in 1997.
She complained of depression and stress from being shunned and called a
dyke by her coworkers. After taking two sick leaves, totaling 10 months
in 1998, management terminated her employment.
After rendering the large verdict last August, the jury forewoman said
that termination was too severe and that management's failure to stem gossip
about her was shameful. The verdict was 10 to 2.
The judge concluded that the jury was more interested in sending a message
about sexual orientation discrimination, than they were in thoughtfully
considering the evidence. In granting a motion for a new trial, he found
that the verdict was not supported by evidence and that the $945,000 award
was to punish the city for sexual orientation bias. In California, punitive
damages are not recoverable against government entities.
Dawn Goodman v. City of San Jose, Santa Clara Co. Super. Ct. (11-9-2001).
Sources: San Fran. Recorder, 11-15-2001; Law.com Empl. Law Practice Alert,
11-16-2001; San Fran. Chronicle/AP, 8-30-2001; KTVU/Fox2; Bay City News.
The text of the unpublished order is not available.
Arbitrator denies a grievance that management
at a correctional facility improperly assigned a supervisor to monitor
inmates when no bargaining-unit employees were at work. There was no language
in the agreement suggesting that duties normally performed by unit employees
are exclusively theirs.
In this case, a corrections officers'
union grieved because a supervisor monitored inmates, without the presence
of a member of the bargaining unit.
The parties previously had settled a food service dispute when management
agreed to pay overtime because a supervisor had performed bargaining unit
work. The Supreme Court has said that the obligations of labor and management
are to be determined by the bargaining agreement and past practices.
An issue was, did the settlement modify the agreement or create a past
practice? The arbitrator noted the agreement did not have a work
erosion clause.
He noted that the Federal Labor Relations Authority has established in
the private-sector, there is a presumption that bargaining-unit work belongs
exclusively to members of the bargaining unit. No such presumption exists
in the public sector.
The prior settlement pertained to food services. "There is nothing
in writing to support the Union's contention that this settlement was intended
to have broader and/or lasting applicability to other situations arising
in other departments in the future."
He further ruled that it was irrelevant whether management was motivated
by a desire to avoid paying overtime or whether that would be an improper
motivation.
Fed. Bur. of Prisons and AFGE L-801, FMCS Case 01/05628, 116 LA (BNA) 324
(Neigh, 2001).
To view the arbitrator's award on the AELE website, click here.
Arbitrator upholds a grievance that
a city improperly hired a new firefighter at 10% more than the contract
minimum wage. Although allowed under an ordinance, the bargaining history
between the city and firefighters' union prevented this action.
Every firefighter in the department, except one, had been hired at
the minimum wage specified in the bargaining agreement. Management hired
one recruit at a 10% premium because he was cross-certified as a police
officer and firefighter.
The union grieved the pay differential because it lowered morale of those
who had not received the increment. It asked that the differential be provided
to everyone or be rescinded for the recent appointee.
The arbitrator noted it was within the power of the city manager to offer
the supplement, which was done in a number of cases involving other city
departments. However, 160 firefighters had been hired at the minimum, and
there was no history of granting such increases to new firefighters.
Under the bargaining agreement, which was adopted by the city council,
when there is a conflict with an ord
inance, the agreement prevails. To hold otherwise would render the agreement
a nullity, he said.
He rejected a 10% raise for other newly appointed firefighters. The duty
of an arbitrator in such cases, is to put the parties back to their original
positions.
He ordered the city to readjust the salary of the firefighter who was paid
a premium. However, there was "no basis for having him return any
of that extra compensation. He did nothing wrong."
Boca Raton (City of) and I.A.F.F. Local 1560, FMCS #05454-3, 116 LA (BNA)
328 (Abrams, 2001).
Click here
to view the arbitrator's award on AELE's website.
Editor's note: Another way of accomplishing the same objective,
is to offer premium pay to all members of the fire and police departments
that are cross-trained.
Michigan appeals court sustains norming
of physical tests results between men and women police applicants.
The Michigan Cmsn. on Law Enforcement Standards establishes minimum
fitness levels for appointment and certification of law enforcement officers.
Using a psychometrician, an industrial psychologist, and an exercise physiologist,
it developed a six-part test to measure physical fitness versus dynamic
strength, explosive strength, speed, agility, and aerobic capacity.
To account for the relative differences in strength between men and women
due to the physiological differences between genders the commission created
different performance standards for males and females.
The method chosen to accomplish this, was to "norm" the candidates'
performance by gender, so that females are compared with females and males
are compared with males. The most physically fit candidates from each group
are then placed into a pool of those individuals eligible to attend the
police academy.
Two male corrections deputy sheriffs were rejected; they sued, alleging
gender and age discrimination, under state and federal law.
The trial court dismissed their action, and a three-judge appeals panel
has affirmed. Ignoring the physiological differences between males and
females "would disproportionately exclude female candidates from that
pool of individuals eligible for certification as police officers."
Gender norming ensures that the most physically fit female candidates are
placed into the larger pool of qualified applicants from which different
agencies may hire.
The "practice of gender-norming the performance skills test is an
act of inclusion rather than exclusion." The test was not intended
to identify the minimum requirements to become a police officer. It was
designed to ensure that the most physically fit from each gender would
be eligible for certification as police officers.
Although there are physiological differences between older candidates and
younger ones, it would not be appropriate to engage in age norming. While
there is a disparity in pass rates, older candidates were not a class of
applicants.
Alspaugh v. Cmsn. on Law Enf. Stds., #220156, 246 Mich. App. 547, 634 N.W.2d
161, 2001 Mich. App. Lexis 137 (2001).
Click here
to view the decision on the court's website.
Sexual
Harassment - Verdicts, Settlements & Indemnity
Chicago federal jury awards a county
police officer $3 million against the department for tolerating sexual
harassment and retaliation.
A woman joined the Cook County Forest Preserve Police in 1993. She
found pornographic photos in her mailbox and was the subject of gossip.
She complained to superiors and the internal affairs division.
Although her allegations were investigated, the inquiry was terminated
and fellow officers shunned her for breaking the code of silence, including
the lack of a back up and slashed tires.
She called as an expert, former Portland (Ore.) police chief
Penny Harrington, the founder
of the National Center for Women
in Policing. She confirmed the mistrust and resentment that male officers
have of women who complain.
Additional women officers on the force testified that although sexual harassment
was rampant, the agency did not have a written harassment policy until
1997.
A jury of five women and three men awarded
her $3 million against the county, which is $1 million more than she asked.
The county had offered her $500,000, which she had rejected.
A second jury was to consider damages against various superiors, but a
mistrial was declared when one of the jurors on that panel heard of the
large verdict reached by the panel considering only the employer's liability.
Spina v. Forest Preserve of Cook Co., #98-C-1393 (Verdict, N.D. Ill. 12-13-2001).
Interim rulings at: 2001 U.S. Dist. Lexis 19146 (11-22-2001; 2001 U.S.
Dist. Lexis 11670, 86 FEP Cases (BNA) 1099 (8-6-2001); 1999 U.S. Dist.
Lexis 18832 (11-29-1999). Verdict details: Chicago Tribune P.1 Sec. 2 (12-13-01)
and Chicago Sun-Times P. 6 (12-13-01).
Second Circuit allows juries to award punitive damages without awarding
compensatory damages in sexual harassment and discrimination cases.
When the Congress amended the Civil Rights Acts in 1991, they added
a sliding-scale maximum on punitive damages from $50,000 to $300,000, depending
on the number of employees of the defendant employer. Although government
agencies are statutorily exempt from punitive damage verdicts in federal
courts, some juries have assessed them against supervisory personnel.
Punitive damages are sometimes awarded in cases where the plaintiff recovers
compensatory damages. The Second Circuit has now held, that punitive damages
are proper even if the jury has declined to award compensatory damages.
In this case, the panel sustained punitive damages of $100,000 in a sexual
harassment case. A probationary employee was requested to have sex by her
supervisor. Although disputed, the jury found that she reported the conduct
to management, and that it waited over a year before taking remedial action.
Cush-Crawford v. Adchem Corp., 00-7617, 2001 U.S. App. Lexis 24806 (2nd
Cir.).
Click
here to view the court's opinion on the FindLaw website.
Editor's Note: A number of state courts and some state human rights
commissions have the power to award punitive damages against supervisors.
Federal courts also can award damages provided under state discrimination
and harassment laws.
In 1998, a Texas jury awarded a woman deputy sheriff $200,000 in punitive
damages for sexual harassment and retaliation. McKenzie v. San Patricio
County, No. C-97-131, 36 G.E.R.R. (BNA) No. 1757 (S.D.Tex. 1998).
In 1997, a Missouri jury awarded a woman fire captain $100,000 in punitive
damages for a sexually hostile environment and $150,000 in punitive damages
for discriminatory treatment. Kline v. City of Kansas City, #94-0723-CV-W-3,
35 (1743) G.E.R.R. (BNA) 1567 (W.D.Mo. 1997).
The federal statute reads: "A complaining party may recover punitive
damages under this section against a respondent (other than a government,
government agency or political subdivision) if the complaining party demonstrates
that the respondent engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the federally protected
rights of an aggrieved individual."
The caps are 15-100 employees: $50,000; 101-200: $100,000; 201-500: $200,000;
more than 500: $300,000. Employers with less than 15 employees are exempt
from Title VII. The number of employees is counted for 20 or more calendar
weeks in the current or preceding calendar year; §1981a(b)(3).
One circuit has found that supervisors are personally liable for sexual
harassment under Title VII: Paroline v. Unisys Corp., 879 F.2d 100, 104
(4th Cir. 1989) vac. other grounds, 900 F.2d 27 (4th Cir. 1990).
Most circuits have held there is no personal liability for sexual harassment
under federal civil rights legislation, and only the employer can be held
liable: Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1399 (D.C.
Cir.), cert. denied, (1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313
(2d Cir. 1995); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994);
Wathen v. GE, 115 F.3d 400, 1997 U.S. App. Lexis 13586 (6th Cir.); EEOC
v. AIC Security Invest., 55 F.3d 1276, 1282 (7th Cir. 1995); Lenhardt v.
Basic Inst. of Tech., 55 F.3d 377, 381 (8th Cir. 1995); Miller v. Maxwell's
Intern. Inc., 991 F.2d 583, 588 (9th Cir. 1993); Sauers v. Salt Lake County,
1 F.3d 1122, 1125 (10th Cir. 1993); and Smith v. Lomax, 45 F.3d 402, 403
(11th Cir. 1995).
Federal appeals court rejects the stress
defense by a terminated firefighter, who claimed an inability to successfully
work with various fellow firefighters.
A civilian firefighter for the U.S. Army was ordered to report to another
fire station because of a staffing shortage. He refused to use his personal
car and insisted on using a government vehicle, although none was available.
He was fired for insubordination; this was the third time he had been charged
with this offense. He contested his dismissal, raising a disability claim.
He alleged that he suffered from depression caused by "the stress
and anxiety of having to work with certain employees" at the Ft. Sam
Houston fire station.
The Merit Systems Protection Board and a U.S. District Court confirmed
his termination. He then appealed to the Fifth Circuit.
The appellate court noted that if true, his defense "would merely
tend to show that he was unable to perform any job at one specific location,
and is not evidence of [his] general inability to perform a broad class
of jobs.
The three-judge panel noted that the appellant had filed 51 EEO complaints
in 15 years, none if which resulted in a finding of discrimination.
Aldrup v. Caldera, #01-50369, 2001 U.S. App. Lexis 26347 (5th Cir. 2001).
Click
here to view the court's opinion on the FindLaw website.
If a bargaining agreement leaves the determination of the arbitrability
of a grievance to an arbitrator, the issue of whether disciplinary action
can be overturned by arbitration is not usually a question for the courts,
and doubt must be resolved in favor of arbitration. Union Twp. v. Firefighters
1981A, #A.L.R.3D, 142 Ohio App.3d 542, 756 N.E.2d 204 2001 Ohio App. Lexis
1758.
Attorneys' Fees and Legal Defense Rights
Federal appeals court affirms an award of attorneys fees of
$277,900 given to a woman fire dept. employee who had sued for disparate
treatment. In an earlier ruling the court upheld compensatory damages of
$47,100. Kline v. City of Kansas City Fire Dept., 1981A/1208, 245 F.3d
707, 2001 U.S. App. Lexis 10972 (8th Cir.); prior opin. at 175 F.3d 660,
1999 U.S. App. Lexis 8500; cert den., 2000 U.S. Lexis 1040.
Defamation
Court dismisses a suit of a former FBI agent who was involved
the "Travelgate" investigation of White House staff, brought
against a "media commentator," who made various statements regarding
the agent in 1996. The agent was unable to show that the commentator acted
with malice and the federal agent was a limited public figure. The commentator
was entitled to a qualified privilege because there was a reasonable basis
for his statements. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 8, 2001
U.S. Dist. Lexis 12307 (D.D.C. 2001).
Disciplinary Punishment
FBI officials could not be sued by an ex-agent. The agent's
sole remedy was under the Civil Service Reform Act. His claims against
various non-supervisory employees were not separable from his employment,
because his position as a federal employee was central to his claims that
they had forced his early retirement. Sculimbrene v. Reno, #99-2010, 158
F.Supp.2d 1, 2001 U.S. Dist. Lexis 12308 (D.D.C. 2001).
Fair Labor Standards Act - Constitutionality
Four state appellate courts have now ruled that state governments
are immune from overtime suits under the FLSA, unless the state has waived
its immunity. Anthony v. Iowa Dept. Public Sfty., #223/99-0515, 632 N.W.2d
897, 2001 Iowa Sup. Lexis 152, 7 WH Cases (BNA) 389 (2001); King v. State,
260 Neb. 14, 614 N.W.2d 341, 347 (Neb. 2000); Allen v. Fauver, 327 N.J.
Super. 14, 742 A.2d 594, 598 (N.J. App. 1999); Commonwealth v. Luzik, 259
Va. 198, 524 S.E.2d 871, 877 (Va. 2000).
Fair Labor Standards Act - Canine
Federal appeals court concludes that the trial court erroneously
dismissed an overtime suit because the city had followed the terms of the
union-negotiated bargaining agreement. The FLSA, not the contract, controls
overtime. Howard v. City of Springfield, #00-1834, 2001 U.S. App. Lexis
26414 (7th Cir.).
The California Attorney General has determined that a public
agency is not required under the ADA to provide, as an accommodation for
a disabled member of a council or board, a teleconferencing connection
at the disabled person's place of residence. A.G. Opinion #00-1210, 01
C.D.O.S. 9764 (11-14-2001).
Handicap Laws / Abilities Discrimination - Specific
Disabilities
A restriction on lifting heavy objects is not a "disability"
within the meaning of the ADA. Mason v. UAL, #01-10218, 2001 U.S. App.
Lexis 26418 (5th Cir. 2001).
Homosexual & Transgendered Employee Rights
In a wrongful termination action, six isolated incidents in
which homophobic statements or gestures were made in presence of a gay
male employee over two-year period did not create a hostile work environment.
Lane v. Collins #00 Civ. 3241, 2001 U.S. Dist. Lexis 17757 (S.D.N.Y.).
Moonlighting (Secondary Employment)
Illinois appellate court affirms the suspension of a police
officer for a year who failed to inform his superiors about criminal activity
of an alderman, who was his client in his off-duty private law practice.
Police general order 89-8 specifically prohibits engaging in secondary
employment which "would result at any time in a conflict of interest"
and prevents police officers who are attorneys from representing individuals
who are targets of criminal investigations. Holden v. Police Bd. of Chicago,
#1-00-1117, 324 Ill.App.3d 862, 755 N.E.2d 67, 2001 Ill. App. Lexis 618.
Privacy Rights
Thwarting a suit by a former FBI agent who sought White House
records, a U.S. District Court rules that the President is not subject
to the Privacy Act 5 U.S. Code §552(f) or the Freedom of Information
Act. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 26, 2001 U.S. Dist. Lexis
12309 (D.D.C. 2001).
Probationary Employment
An Ohio city and the police union can agree, in a bargaining
agreement, to extend the probationary period (from 6 to 9 months), and
if the agreement is otherwise valid, an officer with more than 6 but less
than 9 months service can be terminated without cause. Ste. Marie v. City
of Dayton, #C-3-99-513, 162 F.Supp.2d 766, 2001 U.S. Dist. Lexis 14624
(S.D. Ohio 2001).
Religious Discrimination
Federal appeals court upholds disciplinary action against two
health care workers who preached religious beliefs to public aid recipients.
A public employer may require its workers to abstain from discussing religion
with citizens they meet on the job. Knight v. Connecticut, #00-9131, 2001
U.S. App. Lexis 26430 (2nd Cir. 2001).
Seniority
Overtime policy based on shift seniority rather than tenure
with the employer does not discriminate against older workers. Casteel
v. Exec. Bd. of L-703, #01-1643, 2001 U.S. App. Lexis 24511 (7th Cir. 2001).
Sexual Harassment - in General
California Court of Appeal holds that employers are strictly
liable under state law for sexual harassment by supervisors; a federal
defense available to employers that take steps to address harassment claims
does not apply. Dept. of Health Services v. The Superior Court of Sacramento
County (McGinnis) #C034163, 2001 Cal. App. Lexis 2675, 01 C.D.O.S. 9999.
Teleworking U.S. Office of Personnel Management site
Links to Telework/Telecommuting
sites
CROSS
REFERENCES
Collective Bargaining - in General
- see Noted in Brief: Probationary Employment.
Damages and Remedies - see Featured Cases: Sexual Harassment - Verdicts.
Disciplinary Publicity - see Noted in Brief: Defamation.
Disciplinary Punishment - see Featured Cases: Drug Abuse and Rehabilitation.
Psychological Exams and Standards - see Featured Cases: Applicant Rejections.
Union's Duty of Fair Representation - see Featured Cases: Disciplinary
Investigations.
