A divided federal appeals court holds that a Michigan city was not obliged to pay the $300,000 settlement agreed to by two police officers that stole a woman's cocker spaniel.

     A Michigan woman reported that her car had been stolen with her dog inside. Two officers responded and ultimately located the vehicle. They took the dog from the car to the home of one of the officers.

     The officers lied by reporting that they did not find a dog inside the car. Five months later, during an internal police investigation, the officers admitted to stealing the dog. The cocker spaniel was returned to its owner and the officers faced discipline by the police dept.

     The woman sued the city and both officers in federal court. The trial court granted the city's motion for summary judgment. The plaintiff and the officers entered into a consent judgment whereby one officer would pay $200,000 and the other would pay $100,000 in settlement of the claims.

     In an effort to collect upon the consent judgment against the officers, the plaintiff filed writs of garnishment against the city. She claimed that the city should be liable to pay the consent judgment because of an indemnity agreement between the city and the police union. By the time the garnishment writ was served on the city, the officers each had paid $12,500 in partial satisfaction of their debts.

     The judge dismissed the writ and the plaintiff appealed. A divided Sixth Circuit affirmed, 2-to-1, saying that "there is no rationale to support exercising ancillary jurisdiction over Plaintiff's state law indemnity claim against the city." The panel noted that the indemnity claim was not asserted until after the city was dismissed and the case against the individual defendants was settled. They added:

     "Plaintiff's garnishment claim seeks to impose liability on the City, a third party not a party to the consent judgment, on the basis of the indemnity agreement, a legal theory entirely independent from that in the original action. As stated above, there is no evidence in the record indicating that the City's liability under the indemnification agreement has been established, or, more specifically, whether the officers were acting within the scope of their employment or authority when they stole the dog. ...

"The City has not been adjudged liable to indemnify the officers' settlement with the Plaintiff ... e.g., whether each officer was acting "while in the course of his employment" and "within the scope of his authority." The interpretation of the indemnity provision presents unresolved issues such as whether each officers' conduct giving rise to the suit constituted a frolic or a mere detour from duty."

     The dissenting judge said that garnishment actions are not separate lawsuits because they are post-judgment proceedings, and because the factual issues in the garnishment actions overlap with the factual issues in the underlying claims.

     Hudson v. Coleman, #01-1653, 2003 U.S. App. Lexis 20865, 2003 FED App. 0367P (6th Cir. 2003).

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California appeals court holds that a city must bargain with the union over the adoption of a traffic stops policy that was implemented to prevent racial profiling.

     A California police officers association sued to force management to bargain over the adoption of a policy requiring police officers to record information concerning the race and ethnicity of a person subjected to a vehicle stop if the stop did not result in an arrest or citation.

     A police officer must check boxes on a written form to indicate the time and date of the stop, age group and gender of the driver, driver's race or ethnicity, officer's perception of the driver's race or ethnicity before the stop, initial reason for the stop, initial reason for any search and type of search conducted, outcome of the stop, driver's city of residence, general location where the infraction occurred, duration of the stop, year of the vehicle, and whether the police vehicle was equipped with a camera. A team of researchers will analyze the data collected.

     The Superior Court denied the petition, noting that the vehicle stop policy causes only a minimal workload increase for officers and did not substantially increase the potential for disciplinary action against an officer. Moreover, it found that the cost of the bargaining process would outweigh its value and that the policy was a management prerogative.

     The Court of Appeals reversed. The duty to bargain requires a public agency to refrain from making unilateral changes in employees' working conditions until the employer and employee association have bargained. However, binding arbitration of impasses is not required.

     Although a California public agency must meet and confer in good faith, the law does not prevent a public agency from implementing proposed changes if the parties fail to reach an agreement. The panel said:

     The decision to undertake measures to guard against both the practice of racial profiling and the public perception that racial profiling occurs is a fundamental policy decision that directly affects the police department's mission to protect and to serve the public. We conclude that the decision precisely how to implement that fundamental policy, however, involves several variables affecting law enforcement officers and is not itself a fundamental policy decision.

     We conclude further that the vehicle stop policy significantly affects officers' working conditions, particularly their job security and freedom from disciplinary action, their prospects for promotion, and the officers' relations with the public. Racial profiling is illegal. An officer could be accused of racial profiling and subjected to disciplinary action, denial of promotion, or other adverse action based in part on the information collected under the new policy. * * *

     The panel concluded that the vehicle stop policy was not a policy decision and "directly affects an officer's job security and working conditions arising from the performance of his or her duties." Claremont POA v. City of Claremont, #B163219, 112 Cal.App.4th 639, 2003 Cal. App. Lexis 1529 (3d Dist. 2003).

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Federal court rejects a civil rights lawsuit filed by officers who complain that an internal investigation of the behavior was biased, but they may be able to prove that statements made by an investigator were defamatory.

     Two corrections officers were investigated for using force against an inmate. Although the investigator alleged that the officers were "criminals" and would soon themselves be inmates, ultimately they received only a reprimand.

     They sued in federal court for violations of due process, malicious prosecution, abuse of process, wrongful use of civil proceedings, intentional infliction of emotional distress, invasion of privacy and defamation arising out of the purportedly unlawful manner in which complaint was investigated and processed.

     The court dismissed all claims except the one for defamation by the investigator. Although they had a property right to continued employment under the bargaining agreement, it was not a "fundamental property right entitling them to substantive due process protection."

     Broad allegations about ill motives are not enough to create a constitutional tort. Moreover, while there is a remedy for being the victim of a frivolous lawsuit, the court said that internal disciplinary proceedings do not equate to civil proceedings within the meaning of the Pennsylvania or common law. Keim v. Co. of Bucks, 275 F.Supp.2d 628, 2003 U.S. Dist. Lexis 13926 (E.D. Pa. 2003).

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California appeals court upholds a compelled disciplinary interview, without the officer's lawyer present, when counsel was unable to appear for a rescheduled interview.

     A California police officer was summoned for an internal affairs interrogation. He requested that his attorney be present and the interrogation was rescheduled. When the attorney was unable to attend the rescheduled interrogation because of a conflict, the interrogation went forward.

     The officer and the POA sued for injunctive relief. The Superior Court found that under Cal. Gov't Code §3303(i) -- the Public Safety Officers Procedural Bill of Rights Act -- management was prevented from interrogating any officer if his representative was not available.

      A three-judge appeals panel has reversed. They wrote:

"We first observe that literal application of the judgment leads to the conclusion that an officer could prevent any interrogation by simply choosing a representative who would never be available. ... an officer cannot say 'I want Antonin Scalia for my representative and, since he is unavailable, you cannot interrogate me.' ...

"We are confident that the Legislature did not intend to allow the officer to so easily escape all interrogations. As noted above, our Supreme Court has emphasized the need for prompt investigations of allegations of officer misconduct. Pasadena Police Officers Assn. v. City of Pasadena, #S007915, 51 Cal.3d 564 at 572."

     They noted that nothing in the statute suggests that an interrogation may be repeatedly postponed, or that the time chosen for the interrogation is subject to the schedule of the chosen representative, particularly when, as in this case, the interrogation of the officer in this case was set at a mutually agreeable time. They added:

"Infusion of a reasonableness requirement, avoids the absurd result postulated above and allows the Department to carry out interrogations which could lead to punitive actions or criminal charges in a timely manner. ...

"We agree [that] law enforcement needs to conduct interrogations in a reasonably prompt manner, so that subjects can be interviewed and evidence gathered while memories are still fresh. Without the ability to conduct expeditious investigations, law enforcement will be unable to investigate allegations of misconduct by officers who may compromise the Department's reputation for integrity. Although the Legislature clearly intended to give police officers procedural rights in interrogations, it equally clearly did not intend to allow the officers to dictate, by their choice of representative, whether an interrogation would occur at all."

     Upland POA v. City of Upland, #E032607, 111 Cal.App.4th 1294, 4 Cal.Rptr.3d 629, 173 LRRM (BNA) 2367, 2003 Cal. App. Lexis 1407 (Cal. App.4th Dist. 2003).

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Employer loses its suit against an ex-worker for cyber trespassing. A plaintiff must demonstrate actual harm to obtain injunctive relief or damages.

     A former Intel employee flooded his ex-employer's system with six differently timed e-mails criticizing the firm and urging its 35,000 employees to quit.

     Intel sued, claiming interference with productivity, resulting in economic damages. The appellate court approved of injunctive relief; Intel Corp. v. Hamidi, 114 Cal.Rptr.2d 244 (3rd Dist. 2002). The California Supreme Court has reversed that holding.

     The suit was based on the ancient "trespass to chattels" doctrine. Intel failed to offer proof of actual damage to its servers or other computers. The court's opinion would allow claims against those who overload or damage a computer system.

     The majority held that the tort of trespass to chattels "may not, in California, be proved without evidence of injury to the plaintiff's personal property or legal interest therein."

     Two justices dissented. One said that Intel should be able to maintain the integrity of its proprietary computer system, which it spent millions of dollars in developing to increase employee productivity. Another justice said that the defendant was intruding on a proprietary network, which was equivalent to commandeering a mail cart and dropping off unwanted mail on 30,000 desks.

     Intel v. Hamidi, #S103781, 30 Cal.4th 1342, 71 P.3d 296, 2003 Cal. Lexis 4205, 20 IER Cases (BNA) 65 (Cal. 2003).

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     Research Note: A federal court in California granted an application for a preliminary injunction based on a trespass to chattel claim. The judge found that the defendant's automated access of the plaintiff's servers, as much as 100,000 times a day using robot "spiders," was improper.

     Although the plaintiff could not demonstrate substantial interference with its servers, the court found that the defendant was reducing the plaintiff's bandwidth and server capacity. eBay v. Bidder's Edge, #C-99-21200, 100 F.Supp.2d 1058 (N.D. Cal. 2000). Twenty-eight law professors had filed an amicus curiae brief, claiming that injunctive relief "disserves the Public Interest."

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Appeals court rejects a "non-theistic" freedom of religion claim by a corrections worker to have long hair. Sincere beliefs do not implicate religious rights.

     Although Ohio courts have recognized the rights of correctional workers to disregard hair-grooming regulations, an appellate court was not willing to extend that privilege to someone who claimed a non-religious spirituality.

     The plaintiff was fired from his job as a psychology assistant because of his long hair. He said he had a non-theistic personal philosophy, and regarded his hair as a spiritual "totem" because long hair was a sign of his spiritual development and a reminder to live simply and avoid excessive pride.

     The panel noted that what is a "religious" belief or practice entitled to constitutional protection is a delicate question. They said that the plaintiff's beliefs, while sincerely held, "do not rise to the level of religion as required to afford protection under the Ohio Constitution."

     The three-judge court refused to order the plaintiff's reinstatement. Luken v. Brigano, #CA2003-01-007, 2003 Ohio 5116, 2003 Ohio App. Lexis 4609 (12th Dist. 2003).

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Arbitrator rejects a claim that there was a recognized past practice that allowed the sheriff to disregard a seniority clause in the bargaining agreement. There was no proof of a "public safety" necessity to warrant making a involuntary shift reassignment.

     A deputy with more seniority than others was involuntarily transferred from the swing to the day shift. The sheriff was concerned about "burn out" on the swing shift and believed a change to day shift would benefit the deputy and facilitate his conducting dive rescue and defensive tactics training classes.

     The deputy grieved, and the dispute proceeded to arbitration. The bargaining agreement preserved seniority rights in selecting shifts, but management raised a "public safety" exception.

     Management claimed that the bidding process was not limited to existing emergencies, but included matters that may "affect the responsibility of the Sheriff to protect the safety and welfare of citizens."

     Management also contended the reassignment was consistent with past practices. However, the arbitrator noted that for a past practice to be binding on the parties, it must be clearly enunciated, acted upon and a fixed and established practice accepted by both parties. He said:

"The practice of the Sheriff of occasionally and sporadically assigning a deputy to the administrative shift did not rise to the level of a binding past practice. The admittedly infrequent assignment to the shift outside the bidding process by the Sheriff cannot serve as a basis for implying that the practice represented mutually accepted conduct."

     He also rejected the "public safety" argument and upheld the grievance. Lincoln Co. Sheriff's Dept. and Teamsters L-2, 118 LA (BNA) 1340, FMCS Case 02/0318-06959-7 (Calhoun, 2003).

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     Editor's Comment: There is a recognized public safety exception for shift assignments, but it requires firm proof. If the deputy had a recent history of stress overload, it should have been documented with (a) personnel evaluations and (b) a recommendation from a physician or psychologist. Here, there was neither. Nor were there instances of citizen complaints or disciplinary action to persuade the arbitrator the sheriff could override the bargaining agreement.

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Federal court rejects the necessity of a timed, five-part agility test for prison chaplains. One size fits all testing was unnecessary in the case of clergy.

     A Roman Catholic priest, with a history of serving in prison ministry, sought a Chaplain position with the Federal Bureau of Prisons.

     In addition to a one-year probationary period, his retention by the BoP was contingent upon the successful completion of a Correctional Techniques course at FLETC, including five timed tests intended to measure the physical abilities required for the performance of correctional work.

     The tests were a timed dummy drag, a ladder climb, an obstacle course, a quarter mile run and a stair climb. The priest has impaired breathing ability, and becomes breathless after running a few steps or carrying as little as ten pounds up a few steps. Filing suit under the Rehabilitation Act of 1973, he alleged disability discrimination when he failed to qualify, and said the tests were not a valid BFOQ for Chaplains.

     The BoP insists that all employees, including Chaplains, must be able to respond to emergencies and prison disturbances, and the tests appropriately measure one's ability to respond to such situations.

     The court noted that Chaplains, on occasion, have responded to prison disturbances and other emergency situations. However, the evidence does not permit a conclusion that the number of employees available to respond to a prison disturbance is so small that a prison Chaplain must be expected to be a first responder. The occasions when a Chaplain has responded to a prison disturbance were few, and Chaplains are not required to actually participate in quelling a disturbance.

     The court said "the fact that Chaplains have responded to prison emergencies does not mandate a conclusion that this function is essential to the position of prison Chaplain."

     Although a prison can, at times, have an explosive environment, "the BoP, however, has not shown that there is a substantial risk of harm if a Chaplain is unable to respond to a prison disturbance or other emergency."

     The judge refused to dismiss the suit. Jeffrey v. Ashcroft, #3:CV-00-1442, 2003 U.S. Dist. Lexis 17015 (E.D.Pa. 2003).

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Two Little Rock police officers awarded $450,000 after their personnel files were found in the jail cell. City had released the files to the defendant's lawyer.

     A federal jury in Little Rock, Ark., has awarded two police officers $225,000 each after their complete personnel files, which had been given to a criminal defense attorney, were found in the cell of the prisoner the lawyer represented.

     The jury sitting found that the city was liable under 42 U.S. Code §1983 for improperly releasing the personnel files and violating the officers' right to privacy under the federal and state constitutions.

     The officers worked narcotics investigations and arrested a suspect for cocaine possession. They learned that an associate of the suspect had placed a contract to have the officers killed. The associate was later convicted of solicitation of murder and was sentenced for 30 years on each of two counts.

      In late 2001, the public defender's office obtained a subpoena for the officers' personnel files and served it on the police personnel office. The suspect pled no contest to the drug possession charge and received a four-year sentence. Thereafter, a deputy sheriff found the files in the suspect's cell.

     The officers claimed that the public defender gave the suspect their personnel files, including the names and addresses of their families. The officers said that the city should have notified them of the of the subpoena, objected to its scope, and sent the files to the court as the subpoena directed. They said that the city should have omitted or redacted personal information.

     The Arkansas Freedom of Information Act exempts personal information, and specifically the names and addresses of public employees (Ark. Code Ann. Section 25-19-105).

     They also alleged that the city had a policy of releasing personnel files without regard to the invasion of privacy that might result.

      The officers alleged that as a result of the release of their files, not only was the danger inherent in their jobs increased dramatically, but that they feared for the safety of their families. They cited the "hit" contract that had been placed on them as evidence of the reasonableness of their fears.

     The officers also sought a permanent injunction against the release of personal data. Hart v. Little Rock, #4:02-cv-576, 41 (2028) G.E.R.R. (BNA) 1004 (E.D. Ark., verdict 9/12/03).

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Federal appeals court overturns a summary judgment for a corrections officer who sued to block management from getting a medical opinion on her fitness. Although the ADA prevents generalized medical inquiries, management must be allowed offer a valid business reason to justify the intrusion.

     A woman corrections officer employed by N.Y. since 1989 suffers from asthma and severe pulmonary obstructive disease. She and two others sued the state, alleging that the agency's requirement of a general diagnosis violates the ADA.

     The District Court ruled in her favor because it "could cause an employee in some circumstances to divulge a disability or perceived disability." Fountain v. New York State Dep't of Corr. Servs., 190 F.Supp.2d 335 (N.D.N.Y. 2002). An appeal followed.

     A three-judge panel agreed with other circuits that a plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination under the ADA, §12112(d)(4)(a).

     The panel cited a federal court in Colorado that ruled that a compelled disclosure of an employee's use of prescription medicines violates the ADA. Roe v. Cheyenne Mtn. Conf. Resort, 920 F.Supp. 1153 (D.Colo. 1996). That decision was affirmed, 124 F.3d 1221 (10th Cir. 1997).

     But the panel reversed the summary judgment for the officer. There were genuine issues remaining over whether the DoCS could raise the defense of business necessity, "particularly given the nature of the work, correctional services." The panel also said:

"DoCS's stated goal of weeding out that small group of employees who consistently maintain attendance records that are far below standards is probably consistent with business necessity case law. Nonetheless, if the policy ultimately affects a class of so-called attendance abusers that is much larger than that small group of employees with truly egregious attendance records, or if the policy is applied inconsistently, DoCS will find it more difficult to prove business necessity.

"A policy that is designed to be humane and to prevent staff from being caught up in this process without reasonable justification is certainly laudable in the abstract. However, the danger of such a flexible policy is that it could be used to target individuals with actual or perceived disabilities. Accordingly, we believe that factual development as to what criteria DoCS uses to identify a corrections officer as a time and attendance abuser would be particularly helpful to the district court on remand."

     Conroy [Fountain] v. N.Y. St. Dept. of Corr. Serv., #02-7415, 333 F.3d 88, 2003 U.S. App. Lexis 12014, 14 AD Cases (BNA) 865 (2nd Cir. 2003).

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Supreme Court declines to review a lawsuit brought by a male corrections officer who objected to the fact a woman monitor allegedly observed his genitals while he provided a urine sample.

     We previously reported [2003 FP Feb] that the Eighth Circuit rejected an appeal that a random drug test violated a male officer's privacy because a woman monitor observed his genitals. The panel concluded that even if a woman employee stood only one foot behind him while he was producing a specimen in restroom stall, her presence was not so intrusive as to constitute unreasonable search in violation of Fourth Amendment. Booker v. City of St. Louis, #02-1114, 309 F.3d 464, 2002 U.S. App. Lexis 22705 (8th Cir. 2002).

     The officer sought review by the Supreme Court on the second point, contending that the Fourth Amendment prohibits opposite-gender direct monitoring and observation of public employees while they provide urine samples for drug testing. The Supreme Court denied review, without comment. Booker v. City of St. Louis, cert. den., #02-1511, 2003 U.S. Lexis 5504, 72 U.S.L.W. 3235 (2003).

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Arbitrator declines to set aside a promotion because some candidates used a laptop or materials during the written essay portion.

     The arbitrator noted that officer with a laptop was significantly outscored. An irregularity must create an advantage for the individual who was ultimately the successful candidate.

     Additionally, the arbitrator found no violation of the contract, and no one was disadvantaged by the testing process. The grievant, who brought nothing to the exam, scored better than the officer who did. The grievance was dismissed.

     City of Edmond and FOP L-136, 118 LA (BNA) 1094, FMCS Case 031022/00997-8 (Bankston, 2003).

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Arbitrator concludes that a 7-mile requirement means "as the crow flies" and not vehicle miles. Response time has never been a problem in the city.

     The arbitrator noted that management's "driving distance" argument was based on an emergency "response time" argument. There was no evidence that response time issue has ever really been a problem in the police department.

     The chief of police himself had no empirical information on this issue. "He only testified that when he was dealing with officer W_ it took him 11 minutes to travel from W_'s home to the city limits. The arbitrator said:

"There is no information to permit conclusion that the police officers in Robinson who are off duty might not reasonably and expeditiously respond to any emergency that might come up whether this be under the 'driving distance' or the 'radius' scenario."

     The grievance was sustained. City of Robinson and Illinois FoP Labor Council, 118 LA (BNA) 1276 (Suntrup, 2003).

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Arbitration Procedures

     Arbitrator declines to stay a grievance hearing because management also is pursuing a remedy with the Federal Labor Relations Authority. Bur. of Customs and NTEU, 118 LA 1371 (Abrams, 2003).

Criminal Liability

     Utah police officer sentenced to a year in jail for bigamy and underage sex with a 16-year old girl he took as a third wife. The Fundamentalist Mormon officer's certification was revoked by the P.O.S.T. Recently the state legislature amended the Criminal Code by making child bigamy a second degree felony with a 1 to 15 year term of imprisonment; Utah Code Anno. 76-7-101.5. State v. Holm, (5th Dist. Ct. Washington Co. 2003).

Disciplinary Appeals

     Illinois appellate court rejects a management claim that terminated public employees cannot seek arbitration before pursuing a civil service appeal. Contract language prevails. City of Loves Park v. Illinois Labor Relations Bd., #2-03-0020, 2003 Ill. App. Lexis 1261 (2nd Dist. 2003).

Disciplinary Procedures - Double Jeopardy / Punishment

     Arbitrator overturns the firing of a public employee who was suspended for six days, but shortly afterwards was fired for an accumulation of disciplinary offenses. The discharge was barred by double jeopardy. Transit Auth. of River City and Amal. Transit Union L-1447, 118 LA (BNA) 939, FMCS Case #020822/15082-7 (Goggin, 2003).

Discovery, Publicity and Media Rights

     The Florida Supreme Court has unanimously ruled that the City of Clearwater was not required to release the personal e-mails of city employees simply because they were sent on city-owned computers while on city time. Times Publishing Co. v. City of Clearwater, #2SC02-1694, 2003 Fla. Lexis 1534 (2003). [PDF]

     Appellate court denies a FOIA request for the cellular phone records of five staff members of the Florida House of Representatives. The Republican Party, not the state, paid for the cellular phones. Media Gen. Oper. v. Feeney, #02-2849, 849 So. 2d 3, 2003 Fla. App. Lexis 2023 (Fla. App. 1st Dist. 2003).

E-Mail/Internet - Legal Issues

     Arbitrator holds that management had just cause to suspend the union president for accessing sexually explicit websites with his work computer, despite his claim that he was doing so to learn if management had blocked certain websites. He knew he was not supposed to access sexually explicit materials and accessed the site when he was not scheduled to work and when no one else was present. U.S. Dept. of Agriculture and AFGE L- 3354, 118 LA (BNA) 1212, FMCS Case #02/06813 (Cook, 2003).

Handicap Laws / Abilities Discrimination - Psychiatric

     Federal Court finds that Title II of the ADA does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. However, the ADA requires police agencies to adopt policies and procedures for dealing with mentally ill persons, and that a failure to train police officers to peacefully deal with mentally ill persons is a violation of §12132 of the ADA. Schorr v. Bor. Lemoyne, #1:CV-01-930, 243 F.Supp.2d 232, 14 AD Cases (BNA) 32, 2003 U.S. Dist. Lexis 1979 (M.D. Pa. 2003).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A District of Columbia Government worker fails to convince the court that his severe skin condition, which caused sleep problems, was a disability under the ADA. Haynes v. Williams, #01-454, 2003 U.S. Dist. Lexis 14842, 14 AD Cases (BNA) 1463 (D.D.C. 2003).

Race and National Origin Discrimination

     Federal jury awards $475,000 to a black Haitian city worker who claimed promotional discrimination because of his race and national origin. St. Fleur v. City Fort Lauderdale, #00-7884, 41 (2029) G.E.R.R. (BNA) 1028 (S.D. Fla. 2003).

Race and Sex Discrimination

     EEOC adopts a new federal sector management directive that emphasizes general principles for achieving equal employment opportunity goals and agency self-assessments of their progress. Management Directive 715 (eff. Oct. 1, 2003).

Releases & Waivers

     Federal appeals court sets aside a $135,000 punitive damages award for sexual harassment, won by a Community Policing secretary. She had previously accepted $21,300 when she signed a "general release of all claims asserted or unasserted." Bandera v. City of Quincy, #02-2307, 344 F.3d 47, 92 FEP Cases (BNA) 1014, 2003 U.S. App. Lexis 18933 (1st Cir. 2003).

Sexual Harassment - In General

     Arbitrator concludes that an employee was not the victim of sexual harassment, where one supervisor allegedly made "suggestive comments" and another supervisor supposed pried into her personal business. Southern Nuclear Operating and IBEW L-84, 118 LA (BNA) 1227 (Barry Baroni, 2003).

Sexual Harassment - Retaliation

     Arbitrator holds that an employee was fired for poor performance, and not in retaliation for her complaint of sexual harassment. Management dismissed her for being distracted, lazy, and tardy. Southern Nuclear Operating and IBEW L-84, 118 LA (BNA) 1227 (Barry Baroni, 2003). http://www.aele.org/bnaplus.html

Sexual Harassment - Same Gender

     A divided federal appeals court holds that college security officers cannot recover under §1983 for same-gender sexual harassment, occurring between 1983 and July 1998. Same gender harassment was not recognized as actionable in federal court until after that time period. Snider v. Jefferson State Community College, #02-12472, 2003 U.S. App. Lexis 19070, 92 FEP Cases (BNA) 1009 (11th Cir.). [PDF]

Sexual Harassment - Verdicts, Settlements & Indemnity

     Kentucky Supreme Court upholds a $120,000 compensatory damages verdict for a woman corrections officer who was passed over for promotion 26 times after she filed a sexual harassment complaint; punitive damages not available under state law. Kentucky Dept. of Corr. v. McCullough, #2000-SC-0727-DG, 2003 Ky. Lexis 180, 92 FEP Cases (BNA) 953 (Ky. 2003). [PDF]

Stress Related Claims and Defenses

     Arbitrator reinstates, but without back pay, a private sector employee who left work without management's consent. He suffered from job stress and could have misunderstood that he had permission to leave work. SMG and Intn'l Alliance L-12, FMCS Case 03/00685-6, 118 LA (BNA) 1239 (Goldberg 2003).

Taxation

     State prison guard who was injured while restraining an inmate, sued for lost wages. His front and back pay awards are taxable under sec. 104 of the IRC, because the awards were not paid to compensate him for the injury itself. Johnson v. U.S., #02-1330, 2003 U.S. App. Lexis 18733 (unpubl. 10th Cir. 2003).

Union and Associational Activity

     California appeals panel holds that a teacher's wearing of a union button in the classroom constitutes "political activity," which may be prohibited by management. Turlock Elem. Sch. Dist v. P.E.R.B., #F041187, 2003 Cal. App. Lexis 1513 (5th Dist. 2003). [PDF]

     Federal appeals court affirms the right of nonunion members to obtain financial information justifying a deduction for bargaining activities. Although an independent audit is not required, a union must provide a statement of its chargeable and nonchargeable expenses, together with an independent verification that the expenses were actually incurred. Harik v, Cal. Teachers Assn., #01-15590, 326 F.3d 1042; 2003 U.S. App. Lexis 7079 (9th Cir. 2003); cert. den. sub nom Sheffield v. Aceves, 2003 U.S. Lexis 7714 (2003). [PDF]

Wrongful Discharge - In General

     Federal appeals court affirms the dismissal of a §1983 wrongful discharge and retaliation lawsuit. There was insufficient evidence of retaliation. Rosenfeld v. Egy, 03-1320, 2003 U.S. App. Lexis 20124 (1st Cir. 2003).

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     Bioterrorism: Public Health Response to Anthrax Incidents of 2001, U.S. General Accounting Office (Oct. 2003). [PDF]

     Discipline: "An Employee Disciplinary System That Makes Sense," The Police Chief, Sept. 2003, pp. 22-28; www.theiacp.org/

     "Internal Affairs Management Software," by Tim Dees, May 2003 Law and Order Magazine, pp. 88-94; online article.

     HIPPA privacy rule: HHS National Standards to Protect the Privacy of Personal Health Information.

     "HIPPA administrative simplification: How the privacy rule affects municipal ambulance service providers," 35 (2) The Urban Law Qtrly. (ABA) 317-351; Order information.

     OSHA: Workplace Safety Fire and Explosion Planning Matrix.

     Pre-employment Screening: "Pre-employment Psychological Evaluations," Sept. 2003 Law and Order Magazine, pp. 85-87; online in the articles archive section at www.lawandordermag.com/

     Privacy guidance: OMB Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002.

     Psychic trauma: Book, "Psychological Injuries at Trial," A.B.A. Tort Trial and Insurance Practice Section

     Stress: "Identifying law enforcement stress reactions early," FBI Law. Enf. Bulletin, Sep. 2003, p. 12. [PDF]

Reference:

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

CROSS REFERENCES