•••• EDITOR'S CASE ALERT ••••

Federal appeals court allows an officer's testimony in a prior civil lawsuit to be used against her in a criminal prosecution. Her failure to claim the Fifth Amendment privilege at the civil trial was critical.

     Three jail officers in Florida were accused of beating an inmate. In the I-A investigation, and at a civil trial for damages, the officers denied the charges.

     All three were subsequently indicted by the Justice Dept. for criminal civil rights violations. Two officers were acquitted, but a third officer was convicted of the assault and hindering the investigation, by falsely denying her guilt. 18 U.S. Code §1512(b)(3) reads:

     "... whoever ... corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... hinder, delay, or prevent the communication to a law enforcement officer ... of information relating to the commission or possible commission of a Federal offense ... shall be fined under this title or imprisoned not more than ten years, or both. ..."

     During the criminal trial, the defendant -- who ultimately was convicted -- objected to the use of her testimony during the civil damages trial, claiming that it violated her right against self-incrimination under the Fifth Amendment. Her suppression motion was denied.

     On appeal, a three-judge court affirmed the conviction. The panel noted that the Fifth Amendment permits a witness to refuse to answer any question put to him "unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant."

     That protection, said the panel, extends to any "proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." However, the Fifth Amendment is not self-executing.

     Testimony in a civil trial is protected if a witness is compelled to testify, or reasonably believes the testimony is compelled. Three important rulings were then made:

     1. The panel rejected the defendant's argument that her testimony was coerced because she appeared under subpoena.

     2. She was not compelled to testify simply because the county told her to go in uniform and compensated her for the time in court.

     3. It made no difference that she was not advised that she could invoke her Fifth Amendment right and decline to testify in the civil case.

     Here, there was no statute, regulation, or policy requiring an officer to forgo his or her Fifth Amendment rights in a civil trial. Although it could have done so, the Corrections Dept. did not issue an order requiring her to testify.

     Her superiors did not warn her that she might be subjected to disciplinary action if she exercised her right to silence. Thus, there was "no basis upon which [she] could have formed an objectively reasonable belief that some state action compelled her to forgo her Fifth Amendment rights during the civil trial."

     Finally, the fact that her private attorney failed to inform her that she could invoke her Fifth Amendment privilege did not render her testimony involuntary.

     U.S. v. Vangates, #01-12967, 287 F.3d 1315, 2002 U.S. App. Lexis 6433 (11th Cir. 2002).

     • Click here to view the opinion on the FindLaw website.

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Wisconsin Supreme Court affirms a civil service decision not to allow introduction of after-acquired proof of additional misconduct. The sergeant was not given prior notice of the charge.

     A university police sergeant was given a ten-day suspension for making racist and sexist jokes. Shortly thereafter he was terminated for continuing to tell jokes, making sexually explicit and demeaning comments, untruthfulness, and retaliation against subordinates who cooperated in the investigation.

     The Civil Service Commission reversed, finding no evidence that the sergeant had told derogatory ethnic jokes after the ten-day suspension, or that he retaliated against any employees, or that he was untruthful during the investigation.

     Management then sought to introduce into the record, new evidence that the sergeant confiscated a large number of university records -- which came to light only after the termination.

     The Commission declined to accept the "after acquired evidence" because the ex-sergeant was given no notice of the charge -- and it would be a violation of due process to admit it.

     Management appealed to the courts, and eventually the Wisconsin Supreme Court issued a 5-to-1 decision. The sergeant did remove 11 boxes of files from the university -- more than 24,000 documents. However, evidence of that conduct was properly excluded from the Civil Service Commission hearing. The majority said:

     "... we conclude that UWM was required to provide notice to [respondent] as contemplated by the civil service statutes and as required under due process before it could introduce evidence related to his alleged misconduct in copying and removing confidential documents from the UWM Police Department. Notice and a proper hearing addressing this misconduct is required to remain faithful to the due process interests of civil service employees in Wisconsin and to remain consistent with the policies of security of tenure and impartial evaluation prior to termination."

     The justices went on to distinguish the U.S. Supreme Court's decision in McKennon v. Nashville Banner, 513 U.S. 352, 115 S.Ct. 879 (1995). In that case the justices said that an employer may introduce after-acquired evidence of misconduct "if the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge."

     McKennon was an at-will private sector employee and had no rights of due process. Here, the respondent was "a permanent civil service employee, and as such, he has a property interest in his employment pursuant to statute."

     The majority said that management could not introduce evidence of subsequent misconduct without adequate notice and a hearing. It was proper for the Commission to reject that proof.

     A single justice dissented. The sergeant was not "ambushed" and knew the university was upset over the purloined documents. Management offered the additional charge only to limit the sergeant's claim of back pay. She would have allowed the evidence and believes that the Commission abused its discretion in rejecting that proof.

     Board of Regents, Univ. of Wisconsin v. Wisconsin Personnel Cmsn. (Brenon), #01-1899, 2002 WI 79, 646 N.W.2d 759, 2002 Wisc. Lexis 475 (2002).

o Click here to view the opinion on the Wisconsin Bar website.

     Editor's Note: At least one other court has applied McKennon v. Nashville Banner in a civil service setting; see Brogdon v. City of Klawock, #S-4463, 930 P.2d 989 (Alaska 1997). The court said:

     "If an employer discovers grave misconduct on the part of a terminated employee which the employee might have been able to conceal had the employee not been terminated, the employer should nonetheless not be required to reinstate the employee or to pay prospective damages for the employee's termination."

     It is not necessary to show that evidence of additional misconduct would have been discovered even if the employee was not terminated.

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Arbitrator accepts the excuse that a city employee unknowingly ate marijuana brownies, because the baker corroborated his story.

     An Oklahoma arbitrator has ordered the reinstatement of a long-term city employee who ingested cannabis, as revealed in a random drug test. After the worker was fired he learned that brownies he ate, while on his secondary job as a kitchen worker, were laced with the drug.

     The arbitrator somewhat reluctantly accepted the excuse because a coworker at the kitchen testified that he had baked some brownies and "added marijuana to his recipe." He then stored the brownies in the cooler at the kitchen and had no intent to share them with anyone. The arbitrator said:

     "Frankly, if the establishment of the marijuana-brownie defense was based solely on the Grievant's testimony, I would not hesitate to dismiss it. It is simply too easy a defense to contrive. However, [the coworker] testified credibly on pain of criminal prosecution.

     "Moreover, the facts reveal that [the coworker] was not a close friend or associate of the Grievant's. There is no evidence that would indicate that [the coworker] fabricated his account of making marijuana-laced brownies for his personal use. Thus, the evidence presented by [the coworker] fully corroborates the Grievant's defense."

     The arbitrator directed that the grievant be reinstated with back pay and benefits, less any earnings from a job he took after his dismissal.

     City of Oklahoma City and AFSCME L-2406, FMCS Case #01/11126-8, 116 LA (BNA) 1394 (Eisenmenger, 2002).

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•••• EDITOR'S CASE ALERT ••••

Federal appeals court finds an FBI search of a city agency's offices was illegal. City attorney lacked the authority to consent to a search, which was not for employment-related purposes.

     The Supreme Court, in a 1987 plurality opinion, concluded that employees have a reasonable expectation of privacy that their desks, lockers and files will not be searched by their superiors. O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492 (1987). However, if management has published a rule or policy, informing workers that desks and storage facilities are subject to inspection or search, they no longer have a reasonable expectation of privacy.

     Here, a federal fraud investigation focused on San Francisco's Human Rights Commission. The FBI secured the building over the weekend and did not allow HRC employees access to their offices. Offices and the contents were searched by federal agents, with the "consent" of a deputy city attorney.

     One of the employees was later prosecuted in federal court under 18 U.S. Code §1341, "Mail Fraud" and "Aiding and Abetting." She moved to suppress the documents taken from HRC's offices. The government argued that the search conducted at the HRC's office was an ordinary, work-related file retrieval case under the O'Connor exception to the warrant requirement.

     The government claimed that the City Attorney, acting as the employer in this case, properly consented to the actions taken by the federal investigators. A three-judge appeals panel disagreed.

     First, the HRC -- while technically a part of the City government -- is a separate agency with its own authority and director.

     Second, neither state law nor the City Charter authorizes the City Attorney to act as the employer. "Such a construction would mean that any City official could override Fourth Amendment protections."

     Third, the search was not conducted by management to find documents necessary to carry out the agency's work. The search was carried out by federal agents to ensure that HRC employees were not destroying potential evidence necessary in a criminal investigation.

     Jones v. U.S., #01-10352, 286 F.3d 1146, 2002 U.S. App. Lexis 7132 (9th Cir. 2002).

o Click here to read the case on the court's website. [PDF format]

     Editor's Note: An illegal search of an employee's offices can result in the suppression of federal evidence used against the employee -- but not others implicated in the wrongdoing. The reason is that the secondary persons are not "victims" of the illegal search, and therefore lack "standing" to suppress the evidence. Wong Sun v. U.S., 371 U.S. 471 (1963). A few state courts allow "automatic" or "derivative" standing however, and will not admit illegally seized items in the prosecution of a third party implicated by an illegal search.

     On Aug.28, 2002 Judge Maxine Chesney imposed -- on a corporate defendant in the scandal -- a $1 million dollar fine plus $500,000 in restitution. U.S. v. Guglielmo et al, #00-CR-232 (N.D. Cal., PACER docket report).

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Appeals court affirms an arbitration award that reinstated a public employee who verbally threatened to kill his supervisor.

     A suburban Chicago public employee confronted a supervisor and threatened to kill him. He was arrested for battery, assault and disorderly conduct -- but was found not guilty on all charges. He also was fired.

     An arbitrator ordered his reinstatement, with a 60-day suspension. The city sought judicial review. A three-judge appellate panel has refused to set aside the award.

     While acknowledging the importance of preventing workplace violence, the grievant used words, not his fists. The arbitrator thought a long suspension would remedy the situation, and the appellate court agreed. It was not a violation of public policy to order the grievant's reinstatement.

     City of Harvey v. AFSCME, C-31, L-2404, #1-01-1354, 2002 Ill. App. Lexis 719 (Ill. App. 1st Dist. 2002).

     • Click here to view the opinion on the Illinois courts website.

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State trooper wins $40,000 in damages and $626,000 in attorney's fees and costs for rejection of his leave request to care for a newborn infant.

     In 1995 management told a Maryland State Police trooper that fathers were not entitled to use accrued sick leave as the "primary care giver" for a child. Maryland law allows a primary care giver to use 30 days of accrued sick leave for a newborn.

     He sued under the Family Medical Leave Act of 1993. In 1999, a jury awarded him $375,000 in compensatory damages. A federal appeals court reversed in 2001 and called the award grossly excessive.

     This time the recovery was only $40,000. The state has 11th Amendment immunity for the damage claim -- which is against the agency's then personnel manager in his personal capacity. The state is liable for attorney's fees and costs.

     The American Civil Liberties Union Foundation represented the trooper. Knussman v. Maryland, #B-95-1255, 40 (1975) G.E.R.R. (BNA) 894 (D.Md. 2002) -- on remand from 272 F.3d 625, 2001 U.S. App. Lexis 24037 (4th Cir. 2001).

     • Click here to view the relevant docket entries on AELE's website.

     • Click here to view the Fourth Circuit's opinion holding that $375,000 was excessive.

     • Click here to read the Office of Personnel Management's regulations implementing the Family and Medical Leave Act of 1993.

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Federal Court in New York refuses to dismiss a wrongful termination suit. Plaintiff was promptly and pretextually fired after testifying against the county in another lawsuit.

     The former jail administrator sued in Federal Court for violating his Constitutional rights by terminating his employment in retaliation for his testifying truthfully about the discharge of certain county nurses. The nurses recovered $2.2 million in damages, including one million dollars in punitive damages.

     The next day he was told he was under investigation for receiving free blood tests in the jail clinic. A month latter he received a termination letter stating he improperly had received medical services from a company with which the County had contracted to service inmates. The letter was revised, and set forth no reason for his termination.

     The plaintiff allegedly was singled out for punishment although numerous other County employees and their spouses had received the same free medical services over the years.

     The defendants claimed the termination was not a matter of public concern, which is required for a First Amendment violation. The court said:

     "Nurses who ... were fired for speaking out publicly about ... inadequate care and treatment of mentally ill inmates at the jail. This is clearly a matter of public concern. ... But we need not reach the issue. The record shows that [the plaintiff] was fired, not for blabbing in the public square about Defendants' retaliation against the nurses, but for testifying truthfully as a witness in this Court concerning facts relevant to a lawsuit of which the Court had jurisdiction.

... the Constitutional right to testify truthfully before any tribunal, especially a federal court is a protected Constitutional right wholly apart from the right under the First Amendment to sound off in the public square or at a meeting about matters of public concern. This right may be exercised freely without fear of retribution at the hands of a municipal employer, and is not subject to "balancing" under Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731 (1968)]."

     The court then quoted from the Second Circuit's decision in U.S. v. Pacelli, 491 F.2d 1108 (1974):

     "The Supreme Court has long made clear that certain rights are implicitly conferred ... One of these is the right to testify at a federal trial at response to the request or command of a federal district court. Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise, the foundations of federal justice would be undermined."

     The court also refused to dismiss the action on the basis of qualified immunity, "since the right to testify was clearly established as long ago as 1920." Catletti v. County of Orange, #01 Civ 8530, 207 F.Supp.2d 225, 2002 U.S. Dist. Lexis 11326 (S.D.N.Y. 2002).

     • Click here to view the opinion on the AELE website.

     Editor's Caution: The plaintiff testified as a fact witness, and not as an expert witness. Experts, who usually charge for their testimony and preparation, have less protection from a retaliatory employment loss. See Swartzwelder v. McNeilly, #01-1085, 297 F.3d 228, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002). [PDF format]

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California appellate court affirms a $500,000 jury verdict to a fired gay police recruit.

     Initially, another recruit had reported harassment of the plaintiff. As a result, three recruits were dismissed. Then, some officers and recruits began retaliating against the gay recruit.

     At the end of the training program, the plaintiff failed two final tests and was told to resign or be fired. He was the only recruit to be terminated for failing the tests, which were labeled as "subjective" in nature.

     The ex-recruit filed suit in Superior Court under a state law that prohibits sexual orientation discrimination. After the jury returned a $500,000 verdict, the city appealed.

     In an unpublished decision, a three-judge appeal panel rejected the city's claim that evidence did not support the verdict, citing "a backdrop of pervasive harassment by other recruits and officers."

     The appellate panel noted the plaintiff was failed "for mistakes that were also made by other recruits who were passed." Moreover, the harassment by other recruits and officers, sometimes occurred in the presence of superiors.

     Hoey-Custock v. City of Oakland, #A094881, 2002 Cal. App. Unpub. Lexis 7692, 40 (1975) G.E.R.R. (BNA) 894 (Unpub. Cal. App. 2002).

     • Click here to view the unpublished opinion on AELE's website.

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Eighth Circuit affirms a verdict of $142,735 against the State of Missouri for two non-employee contractual nurses assigned the work at a Dept. of Corrections facility.

     The jury heard evidence that the complaints of harassment raised by two nurses were met by management with threats to their well-being, warnings of possible termination, obstruction of their work, added unnecessary job requirements, and general harassment.

     The jurors concluded the plaintiffs were constructively discharged and awarded one nurse $31,712 in lost wages and benefits, plus $25,000 in non-economic damages; they awarded the other nurse $61,024 in lost wages and benefits, plus $25,000 in non-economic damages.

     The State appealed, asserting no liability because the plaintiffs were actually employed by a contractual nursing service. A three-judge panel disagreed, saying that although Title VII protects employees, not independent contractors, from discriminatory employment practices, an employer "may not avoid Title VII by affixing a label to a person that does not capture the substance of the employment relationship."

     The panel said that "nothing in the law precludes the possibility that a person may have two or more employers for the same work." While the plaintiffs were directly paid by a contract service, they did no work for the service other than serve at the DOC's facility. They noted:

     "It was DOC that hired them, determined their work duties and schedules, provided the tools and supplies of their work, provided (and sometimes withheld) the doctors' orders they needed to do their jobs, determined and ultimately paid their salaries, and threatened to fire them if they did not get along better with other DOC employees. Thus, upon review, we hold that the district court did not err in ultimately concluding that plaintiffs were employees of DOC at all relevant times and therefore had standing to sue DOC under Title VII."

     The panel also rejected an 11th Amendment argument, observing that in 1972 the Congress amended Title VII to include employees of state and local governments. Hunt v. State of Missouri, #00-3490, 297 F.3d 735, 89 FEP Cases (BNA) 867, 2002 U.S. App. Lexis 15773

     • Click here to view the opinion on the FindLaw website. [PDF format]

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Tenth Circuit affirms a $75,000 verdict for a SWAT officer who was involuntarily transferred after he testified that the department's firearms training programs were deficient.

     A former Denver Police Officer and member of the SWAT team sued the City after he was transferred to the Police Academy after giving testimony critical of the department's training programs.

     The then Chief of Police denied any direct involvement and claimed it was a low level transfer which he simply approved. However, the head of the Academy testified that she "was present in [the chief's] office when he received a phone call about [the plaintiff's] testimony in the civil service hearing."

     She said the chief "slammed the phone down and cussed, [he] was angry; and he told the people in the room that [the plaintiff] had testified against us at the ... civil service hearing."

     The jury awarded the plaintiff $75,000 in compensatory damages on a retaliatory transfer claim, but found for the City on a constructive discharge claim.

     A three-judge appeals panel has affirmed the verdict. They noted that when the plaintiff arrived at the academy, there was no office or equipment for him. The transfer to the Academy was "devastating" to his family life. Because of a shift change, he was unable to care for his two children -- causing a strain on his marriage and his friendships.

     The evidence met the requirements for a verdict:

     1. His speech was constitutionally protected because it addressed a matter of public concern.

     2. His speech was not outweighed by the employer's interest in the efficiency of its office.

     3. His testimony was a substantial and motivating factor in the unwanted transfer.

     The panel concluded that "there was sufficient evidence before the jury to determine that [his] criticism of the Department was a substantial and motivating factor in the City's decision to transfer him."

     They also found that the award of $75,000 was not excessive and was supported by sufficient evidence. Schneider v. C&C of Denver, #01-1199, 2002 WL 1938583, 2002 U.S. App. Lexis 17605 (10th Cir.2002).

     • Click here to view the opinion on AELE's website

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Corrections lieutenant who was laterally transfer failed to prove she was the victim of retaliatory action after she opposed the termination of a native-American officer.

     A Utah woman corrections lieutenant served under a deputy warden who "employed an abrasive and authoritarian management style and inspired fear in his subordinates."

     The deputy warden often used profanity and racial epithets. He referred to a male probationary officer as a lazy Indian. The officer was terminated, and filed suit for discriminatory treatment. The lieutenant had vigorously opposed his dismissal and later claimed the officer was a victim of discrimination.

     The lieutenant resigned, moved to Oregon, and sued in federal court for constructive discharge and retaliation. The judge gave the state a summary judgment, and the plaintiff appealed.

     The appellate court noted that management sympathetically investigated her claims that the deputy warden had engaged in discriminatory treatment. The state later paid a settlement to the former officer.

     More significantly, the plaintiff was unable to show she was harmed. She was laterally transferred after opposing the officer's termination, and although that slightly increased her commuting time, it did not justify her constructive discharge claim.

     The panel also rejected her First Amendment and Due Process claims. Petersen v. Utah Dept. of Corrections, # 01-4090, 301 F.3d 1182, 2002 U.S. App. Lexis 17415, 89 FEP Cases (BNA) 1182 (10th Cir. 2002).

     • Click here to view the opinion on the FindLaw website.

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Fifth Circuit affirms a back pay judgment for an officer who was fired because of his union involvement, but holds that $224,000 in damages for emotional distress was too high.

     A San Antonio federal jury awarded an ex-deputy constable $300,000 in damages following his termination -- plus $88,488 in legal fees. The jury found, that the deputy was fired because the constable disapproved of his involvement with two labor unions, the Alamo Area Peace Officers' Assn. and the Texas Conference of Police and Sheriffs.

     The constable claimed the deputy was fired because he referred to a bomb going off, which the deputy said was only a figure of speech.

     A three-judge appeals panel has affirmed. "No reasonable officer could have concluded that firing [the plaintiff] because of his union affiliation was legally permissible."

     However, the damage award was too high. The panel said that "the evidence presented at trial supports the $76,000 in damages for lost income but not the remaining $224,000 in nonpecuniary damages."

     The plaintiff lacked any evidence to support so high an award. They remanded the case to the to trial court for a reduction in damages. Hitt v. Connell, #01-50117, 301 F.3d 240, 2002 U.S. App. Lexis 15334, 170 LRRM (BNA) 2789 (5th Cir. 2002).

     • Click here to view the opinion on the FindLaw website. [PDF format]

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Arbitrator refuses to reinstate a police officer. During his six years on the job, the officer was at fault in seven on-duty vehicle collisions.

     The officer also received twelve disciplinary actions resulting in 93 days of suspension. He had signed a "Last Chance Agreement" in connection with a prior 45 day suspension. It allowed his termination for even an insignificant violation of agency policy or regulations.

     The arbitrator said:

"Safely driving a Police car is an essential prerequisite for a Police Officer in Houston, Texas. The Appellant has demonstrated that he does not possess the skill of being able to drive a Police patrol car safely."

     The arbitrator refused to consider ordering his reinstatement to a non driving position, saying:

     "... the assigning of an individual who has demonstrated incompetence, or who could not perform an essential element of being a police office as rewarding that individual or giving him special treatment."

     In view of the grievant's disciplinary and collision record, the grievance was denied. City of Houston and "J" Individual Grievant, AAA Case #70-390-00017-02, 117 LA (BNA) 408 (Moore, 2002).

     • Click here to view the opinion on the AELE website

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Age Discrimination - General

     The EEOC plans to allow ADEA complainants to file a lawsuit, 60 days after filing of a charge with the Commission, and without waiting for a Notice of Dismissal or Termination to be issued. Procedures - Age Discrimination in Employment Act, 29 CFR Part 1626, 67 (155) Federal Register 52431-52433 (Aug. 12, 2002). [PDF format]

Age Discrimination - Promotion/Assignment

     A Texas county probation dept. has settled a failure-to-promote age bias claim for $5,000. The plaintiff was 40 years old when she was passed over. EEOC v. Bexar County Juvenile Probation Dept., #SA-01CA0474, 40 (1975) G.E.R.R. (BNA) 895 (W.D. Tex. 2002).

Applicant Rejections

     Pennsylvania state court dismisses a suit by an applicant, whose acceptance to the police academy was rescinded before he entered because of immature conduct during an alleged altercation with his wife. He lacked a vested property interest in the appointment and was not entitled to hearing before being disqualified. Snisky v. Penna State Police, #1653 C.D. 2001, 799 A.2d 961, 2002 Pa. Commw. Lexis 439 (Pa. Commw. 2002).

Arbitration Procedures

     Federal court in Philadelphia holds that the arbitrator should decide whether a group of workers may pursue claims of race discrimination in a class action, even if the bargaining agreement is silent on the issue of class remedies. Brennan v. ACE INA Holdings, #00-2730, 2002 U.S. Dist. Lexis 15039 (E.D. Pa. 2002).

     Alaska Supreme Court holds that the state's Labor Relations Agency had the power to decide questions of arbitrability. Fairbanks Fire Fighters Assn. L-1324 v. City of Fairbanks, #S-9715, 48 P.3d 1165, 2002 Alas. Lexis 77 (2002).

Bill of Rights Laws

     Under the state's Public Safety Officers Procedural Bill of Rights law, a California appeals court affirms a writ of mandate compelling a police dept. to provide, to officers that undergo investigatory interrogation, copies of tape-recorded witness interviews and rough notes taken by investigators. San Diego P.O.A. v. San Diego (Bejarno), #D037812, 98 Cal.App.4th 779, 120 Cal.Rptr.2d 609, 2002 Cal. App. Lexis 4145 (Cal. App. 4th Dist. 2002).

     A police agency internal affairs index card listing all complaints made against a named officer, is a file "used for personnel purposes" under the state's Public Safety Officers Procedural Bill of Rights Act, for purposes of the officer's right to read and respond. Sacramento P.O.A. v. Venegas, #C030428, 124 Cal.Rptr.2d 666, 2002 Cal. App. Lexis 4584 (Cal. App. 3d Dist. 2002).

Disability Rights and Benefits - Offset and Subrogation

     California appellate court overturns a trial judge's order that a public employee disability fund deduct, from an ex-employee's monthly benefits, court-ordered restitution payable to a person that was criminally victimized by the former county worker. Board of Retir. of L.A. Co. v. Super. Ct. (People), #B158075, 124 Cal.Rptr.2d 850, 2002 Cal. App. Lexis 4606 (Cal. App. 2d Dist. 2002).

FLSA - Administrative & Executive Exemptions

     Appeals court finds that various city employees were exempt from the FLSA; the fact that the city docked their pay if they failed to work a full eight-hour day did not alter their exempt status. Demos v. City of Indianapolis, #01-2952, 2002 U.S. App. Lexis 17934 (7th Cir. 2002).

Family, Medical & Personal Leave

     Arbitrator finds that management did not violate the bargaining agreement when it limited firefighters' annual, sick, or injury leave so that only one per shift would be allowed; the CBA gave the city an unqualified right to determine staffing levels. City of Del City and IAFF L-2171, FMCS Case #01/14531, 117 LA (BNA) 393 (McReynolds, 2002).

First Amendment Related

     Opening a city council meeting "in the name of Jesus Christ" violated the Religion clause of the First Amendment. Rubin v. City of Burbank, #B148288, 124 Cal.Rptr.2d 867, 2002 Cal. App. Lexis 4619 (Cal.App. 2d Dist. 2002).

Free Speech

     Appeals court rejects a First Amendment and retaliation claim of a demoted black woman commander who had publicly criticized the sheriff's dept. She had been demoted because a backlog of 6,000 warrants had not been entered into the computer and other deficiencies. Pool v. VanRheen, #00-35997, 297 F.3d 899, 2002 U.S. App. Lexis 14671, 89 FEP Cases (BNA) 793 (9th Cir. 2002).

Handicap Laws / Abilities Discrimination - In General

     Federal appeals court dismisses a suit by a firefighter who was physically unable to perform his duties for 11 months. "Only a permanent or long-term condition will suffice to qualify a person for the ADA's protection." Rinkenberger v. City of Clearwater, MN, #01-3835, 2002 U.S. App. Lexis 15560 (Unpub., 8th Cir. 2002).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Third Circuit holds that a disabled EMT, who asked for a transfer to a dispatching position, was not required to watch for job openings or to file formal applications for vacant posts. Shapiro v. Twp. of Lakewood, 292 F.3d 356, 2002 U.S. App. Lexis 10302 (3rd Cir. 2002).

     A state agency's removal of an ADA case, from state to federal court, constituted a waiver of its sovereign immunity for that case. Estes v. Wyoming, #00-8069, 2002 U.S. App. Lexis 18324 (10th Cir. 2002)

Handicap Laws / Abilities Discrimination - Psychiatric

     Appeals court rejects the ADA claims of a worker who was fired for insubordination and threats of violence, and not because of her failure to submit to a medical examination. When an employer's inquiries about the mental health of an employee reflect a concern for the safety of coworkers, management may require the employee to undergo an examination. Williams v. Motorola, 00-13820, 2002 U.S. App. Lexis 18276 (11th Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court dismisses an ADA suit by an asthmatic corrections officer who was fired for missing work more than a third of her scheduled workdays during the nine months preceding her termination. Thorner-Green v. NYC Dept. of Corrections, #00-CV-489, 207 F.Supp.2d 11, 2002 U.S. Dist. Lexis 12177 (E.D.N.Y. 2002).

Homosexual & Transgendered Employee Rights

     Federal court declines to dismiss a suit by a lesbian schoolteacher for a hostile work environment caused by students. Lovell v. Comsewogue Sch. Dist., #01CV7750, 214 F.Supp.2d 319, 89 FEP Cases (BNA) 1189, 2002 U.S. Dist. Lexis 15002 (E.D.N.Y. 2002).

Past Practices, Precedents & Zipper Clauses

     Arbitrator upholds a grievance that a federal agency previously paid for two or three union officials to attend a national benefits conference and cut the number to only one in 2002. There was a nexus between upcoming negotiations and the conference. General Services Administration and AFGE C-236, 117 LA (BNA) 436 (Hockenberry, 2002).

Political Activity/Patronage Employment

     Tenth Circuit refuses to dismiss the suit of a reserve deputy who was decommissioned after he expressed support for a person who intended to run against the sheriff in the next election. Bass v. Richards, #01-1202, 2002 U.S. App. Lexis 16440 (10th Cir. 2002).

Race or Sex Discrimination - Disparate Discipline

     A discriminatory retaliation complaint filed by a correctional officer is rejected -- where the plaintiff and other officers disciplined for attendance violations were not similarly situated. Disciplinary records of other officers was properly excluded. Snipes v. IL Dept. of Corrections, #01-3148, 291 F.3d 460, 2002 U.S. App. Lexis 9728, 88 FEP Cases (BNA) 1681 (7th Cir. 2002).

Racial Harassment

     Federal court declines to dismiss a suit by a white manager at a juvenile facility who claims that he was subjected to racial harassment and false accusations of being a Klansman. Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002).

Sexual Harassment - In General

     Tenth Circuit rules that physical losses must accompany an award for mental anguish. Wilson v. Muckala, #00-5131, 2002 U.S. App. Lexis 17283, 89 FEP Cases (BNA) 1217 (10th Cir. 2002).

     Federal appeals court reverses a jury verdict for the plaintiff, that found sexual harassment and constructive discharge; the alleged harassment was neither severe nor pervasive. Duncan v. G.M. Corp., #00-3544, 300 F.3d 928, 89 FEP Cases (BNA) 1105, 2002 U.S. App. Lexis 17369 (8th Cir. 2002).

     A warning to an employee not to discuss her complaint of sexual harassment with anyone did not excuse her delay in bringing a legal action. An employer "has a right to take steps to prevent an employee from spreading what may be groundless rumors concerning improper conduct by another employee." Beckel v. Wal-Mart, #02-1208, 2002 U.S. App. Lexis 17876, 89 FEP Cases (BNA) 1208 (7th Cir. 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Michigan appeals court affirms a $21 million verdict for a woman who endured seven years of harassment. Gilbert v. Daimler-Chrysler, #227392, 2002 Mich. App. Lexis 1168 (Unpub. Mich.App. 2002).

     California appeals court affirms a sexual harassment award against a city housing authority in the amounts of $500,000 for emotional distress damages, $173,866 in interest, $611,898 in attorneys' fees, and $11,986 in costs and $30,000 in discovery sanctions. Walker v. San Francisco Housing Auth., #A0954767, 100 Cal.App.4th 685, 122 Cal.Rptr.2d 758, 2002 Cal. App. Lexis 4442 (2002).

Union and Associational Activity

     A divided NLRB holds that an inquiry to a worker regarding the "union sympathies of employees" is not per se coercive and is not "unlawful interrogation" in violation of §8(a)(1) of the National Labor Relations Act. John W. Hancock, Jr., Inc. and United Steelworkers of Amer., #11-CA-18716, 2002 NLRB Lexis 381, 337 NLRB No. 183 (2002).

     Sixth Circuit holds than an employer did not unlawfully discriminate against a union, under the National Labor Relations Act, by permitting the Girl Scouts and Salvation Army to solicit on its property, while denying union representatives the same privilege. Albertson's Inc. v. NLRB, #00-2359, 301 F.3d 441, 2002 U.S. App. Lexis 16668, 2002 FED App. 0281P, 170 LRRM (BNA) 2769 (6th Cir. 2002).

     Appeals court holds that employees cannot be directly solicited to appear in an anti-union video. Allegheny Ludlum v. NLRB, #01-2338, 301 F.3d 167, 2002 U.S. App. Lexis 17664, 170 LRRM (BNA) 2923 (3rd Cir. 2002). Whistleblower Requirements and Protection

     Fifth Circuit holds that the adoption of a Whistleblower law which allows damages against a state employer does not waive Eleventh Amendment immunity in federal court for other claims. Martinez v. Texas Dept. of Criminal Justice, #00-51135, 300 F.3d 56, 2002 U.S. App. Lexis 14915 (5th Cir. 2002).

Wrongful Discharge - In General

     Texas appeals court dismisses a suit by an ex-deputy sheriff who alleged that he was fired because he refused to commit perjury; the Texas legislature did not waive the sovereign immunity of counties for wrongful termination suits. Salazar v. Lopez, #04-02-00115-CV, --- S.W.3d ---, 2002 Tex. App. Lexis 5697 (Tex. App. 2002).

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     CD-ROM: The Equal Employment Opportunity Commission now offers its seven volume set of Technical Assistance Manuals on a searchable CD-ROM for $135.

     Document download: "Arbitration of employment claims - an overview," presented at the ABA annual meeting (Aug. 2002). [Ms-Word format]

     Document download: "How far is too far? Employee misconduct and the Americans with Disabilities Act," presented at the ABA annual meeting (Aug. 2002). [Ms-Word format]

     Document download: A politically-correct Stylebook of gender identity and related terminology. [PDF format]

     Online resource: Dictionary of Occupational Titles, compiled from Bureau of the Census and Labor Dept. sources.

     Online resource: The Federal Domestic Per Diem rates for federal employees traveling on government business, for the fiscal year beginning in Oct. 2002, are now on the Internet.

CROSS REFERENCES