U.S. Capitol Police officer is convicted for creating an anthrax "joke." He left some powdered sweetener and a note on a desk; Justice Dept. enforces a zero tolerance policy.

     In October 2001, anthrax was found in the Hart Senate Office Building suite of the Senate Democratic Leader. On Nov. 7th, a 13-year veteran officer left some powdered sugar-substitute on a police desk in the Cannon House Office Building with a note reading:

     "Please inhale. Yes this could be? Call your doctor for flu symptoms. This is a Capitol police training exercize [sic]! I hope you pass!"

     Shortly after the substance was found, the officer identified it as Equal™ and said it was only a joke. Two opened Equal™ packets were clearly visible on the desk. The hazardous material unit was never called in and the substance was not tested as a biological agent.

     In January 2002, the officer was indicted by a federal grand jury for making false statements under 18 U.S. Code §1001(a) and obstructing fellow police officers under 40 U.S. Code §212a-2(d).

     Defense counsel was unable to influence the jury that the actions were harmless. He was convicted of making false statements, but was acquitted of the obstruction charge.

     A presentence hearing was set for Feb. 4, 2003, and the defendant was continued on his personal recognizance bond. His father served as a Capitol Police officer, and his brother currently is on the force. U.S. v. James J. Pickett, # 02-CR-14 (D.D.C. 2002).

     • Click here to read the docket entries on the AELE website.

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Congress establishes a benefit fund for federal agents and service members killed while combating terrorism.

     The homeland security legislation enacted in Nov. 2002 facilitates the establishment of charitable trusts for the spouses and dependents of the military, CIA, FBI and other federal employees killed in the line of duty while combating terrorism.

     Called the Johnny Michael Spann Patriot Trusts, the program is named after the former CIA agent who was fatally shot during a Taliban prisoner uprising in Afghanistan.

     Sen. Jeff Sessions, R-Ala., introduced the proposal as a stand-alone bill, but was able to get the sponsors of the homeland security bill to include it in the final version. H.R. 5005, Sec. 601, "Treatment of charitable trusts for members of the Armed Forces of the United States and other governmental organizations."

     • Click here to read the H.R. 5005, the Homeland Security Act of 2002 on the Internet. [PDF]

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Ninth Circuit upholds the right of a police officer to sue entertainer George Michael for slander and the intentional infliction of emotional distress. The singer accused the undercover officer of provoking Michael's lewd conduct in a public toilet.

     A Beverly Hills police officer arrested, and later sued Georgios Kyriacos Panayiotou, aka George Michael, a "well-known pop singer and song writer" from Britain. Although the entertainer was convicted of engaging in lewd conduct in a public toilet [Calif. Penal Code §647(a)] he subsequently accused the officer of entrapment and sexual misconduct.

     A federal appeals panel has split, 2-to-1, upholding the right of the officer to file a damage suit against the entertainer. The majority said:

"... it is doubtful that the police conduct alleged -- the exposure of a police officer's genitals and an act of masturbation in a public place -- is an accepted practice of the Beverly Hills Police Department in the conduct of undercover operations. ...

"... a reasonable fact finder could conclude that Michael's statements accuse [the officer] of conduct that would disqualify him from service as a police officer, regardless of whether it was done to further an undercover operation."

     A third Judge dissented, saying:

"The majority's standard would thereby convert almost every public statement regarding alleged police impropriety into a potential lawsuit by the officer accused of wrongdoing. If a citizen claimed that an officer was unnecessarily rough in effecting an arrest, or that an officer was verbally abusive without provocation, such statements would apparently subject the citizen to the threat of liability -- and at the least to the expense of defending a legal action. This cannot be the proper result; the chill on reports of police misconduct would simply be too high."

     Ultimately the allegations will have to be believed or disbelieved by a jury. As the majority noted, "the assertions that [the plaintiff] first exposed himself and masturbated in front of Michael are factual and susceptible of being proved true or false. ... They therefore give rise to an action for slander." Rodriguez v. Panayiotou, #00-56923, 2002 U.S. App. Lexis 24352 (9th Cir. 2002).

     • Click here to read the decision on the Internet. [PDF]

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Arbitrator holds that a city could require its animal control officers to have a special deputy sheriff commission, and if it is revoked, the officer is not entitled to retain his municipal employment.

     An Indianapolis animal control officer also operated in the unincorporated areas of Marion County. He was required to hold a special deputy sheriff commission, and agreed in writing it could be revoked by the sheriff without cause, and without a hearing or a right to appeal.

     After an I-A investigation of his conduct at an incident, he refused to answer questions posed by the sheriff's I-A personnel. His deputy's commission was revoked, and the city fired him. The union grieved, raising the defense of progressive discipline and other claims.

     Like a security clearance required of defense plant workers, the officer needed the sheriff's commission to work, and it was revoked. The city afforded him due process on his termination, but could not continue his employment without his having county peace officer powers.

     The grievance was denied. City of Indianapolis and AFSCME L-725, 117 LA (BNA) 911, AAA Case No. 52-390-00300-01 (Alexander, 2002)

     • Click here to read the decision on AELE's website.

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Employer must have an anti-fraternization policy to punish an off-duty relationship. Without a privacy policy, the employer also could not discipline the grievant for reading a superior's e-mails, or for opening sexually explicit e-mails from a coworker where the sending party was not disciplined.

     An arbitrator has annulled the termination a county employee with 13-years of discipline-free service. The grievant was fired for three reasons.

     1. Although the grievant had an extra-marital affair with a coworker who was selected for promotion, there was no evidence that the relationship violated an established anti-fraternization policy of the county. The affair occurred during non-working time and did not adversely affect the grievant's job performance of his duties. More significantly, there was no evidence that the grievant engaged in preferential treatment of the employee.

     2. While testing a superior's computer for viruses, the grievant read and printed two e-mails. The county did not have a rule that governs e-mail privacy. The arbitrator said the offense was similar to reading a letter on the superior's desk and a warning "would have been sufficient in this situation". The county's "Computer Use Policy" did not provide that stored information is private.

     3. The county alleged that sexually explicit e-mails were forwarded to the grievant. However, management took no action against those sending the inappropriate e-mails. Disciplinary action against those who only received improper e-mails, sent by others, " is not just cause for his termination" absent proof the e-mails were solicited by the employee.

     The grievant was reinstated with full back pay and benefits. Monterey County and Individual Grievant, CSMCS No. ARB-01-0050, 117 LA (BNA) 897 (Levy, 2002).

     • Click here to read the decision on AELE's website.

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California appeals court finds that a demoted sergeant was not guilty of having sex with a young girl, did not violate police procedures, and is entitled to reinstatement of rank and pay differential.

     A Long Beach police sergeant vehemently denied having sex with a 16-year old girl. After the I-A investigation he was demoted for providing his pager number to an erratic and capricious juvenile, giving her an unauthorized ride in patrol car, visiting a rooftop with her at 1:00 a.m. He was demoted and sought judicial review.

     A three-judge appeals panel said:

"Sergeant C__ had no reason to avoid these superficial, friendly discussions with a 16-year-old girl, who clearly lacked an adult role model in her life. When [the girl] first "crossed a line" by attempting to use Sergeant C__ to her own ends, he immediately set limits and told her to stop. When [she] next exhibited sexually flirtatious behavior, Sergeant C__ immediately sought the intervention of the appropriate authorities. It is true that Sergeant C__ accompanied [her] to the roof of the International Towers, but he had a legitimate law enforcement reason to do so. In short, the evidence supports the trial court's finding Sergeant C__ was doing his job and not conducting an inappropriate personal relationship with her."

     Collier v. Long Beach Civil Serv. Cmsn., #B147806, 2002 Cal. App. Unpub. Lexis 8639, 2002 WL 31087774 (Unpub. Cal. App. 2002).

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

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Federal appeals court upholds the forced retirement of a black Agent in Charge who had more than 100 complaints against him, including sexual harassment, retaliation, racial favoritism and soliciting petty bribes.

     After receiving more than 100 complaints about the Special Agent-in-Charge of the Chicago office, superiors initiated a "management review." The investigation revealed that SAIC not only intimidated and harassed his own employees, but also solicited favors from the public that he was charged to protect. Management asked for his resignation.

     After resigning, the ex-agent sued the Service, alleging that his superiors initiated its investigation into his wrongdoing because of his race. The trial court granted summary judgment in favor of the Secret Service and the plaintiff appealed.

     The plaintiff, an African American, headed Service's fifth largest field office, and supervised 135 agents. Among the complaints against him were:

     1. He alleged sexually harassed a woman agent, and then transferred her to Gary, IN in retaliation for making a complaint.

     2. He received numerous gratuities and other favors for his personal use from private organizations.

     3. He retaliated against other employees for speaking out against him or his policies.

     4. He sexually harassed and discriminated against other female employees. Numerous employees complained that he "repeatedly ogled and fondled female agents and other employees. His vulgar remarks to female agents include referring to himself as 'big dick daddy from Cincinnati.'" He commented to female agents that if they had not had sexual intercourse with a black man that they were racists and bigots, and advising them that if they tried "a black man sexually ... [they] would never want to be with anyone else."

     5. He treated African American employees more favorably than other employees and gave them preferable training courses and assignments.

     6. His office had low employee morale. Out of 82 Service employees interviewed, 36 described their morale as low to non-existent, including fourteen of the eighteen women in the office.

     A three-judge appeals panel concluded that the forced resignation was proper. They said:

"... nowhere in his brief does [the plaintiff] dispute the Service's claim that well over 100 agents in the Chicago Field Office lodged complaints with the management review team about [the plaintiff's] heavy-handed, morale-reducing, managerial style.

"Likewise, [the plaintiff] fails to dispute the Service's claim that it received numerous complaints about [his] solicitation of personal favors from those whom he was charged with the duty to protect. Given the magnitude and severity of the complaints, [the plaintiff] has failed to establish that he was meeting his employer's legitimate expectations.

"... a public official who solicits bribes and sexually harasses his subordinates cannot, by any stretch of the imagination, be considered to be meeting his employer's legitimate expectations."

     As for his disparate treatment claim, the panel said he "failed to point out any other SAIC who was the subject of more than 100 complaints ranging from depressing morale to sexual harassment to soliciting personal favors, and thus his attempt to locate a similarly situated employee is futile."

     The panel excoriated the plaintiff by saying that he "shamelessly refuses to accept responsibility for his own misguided activity and instead points the finger at those who investigated him." Grayson v. O'Neil, #01-3160, 308 F.3d 808, 2002 U.S. App. Lexis 22352, 90 FEP Cases (BNA) 165 (7th Cir. 2002).

     • Click here to read the decision on the FindLaw website. [PDF]

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Eighth Circuit rejects an appeal that management had to prove that it had selected a corrections officer randomly for a drug test, or that the specimen-taking procedure violated the male officer's privacy because a woman monitor observed his genitals.

     A corrections officer contested his termination after failing a random drug test, by filing a civil rights suit against the city. In his complaint he raised two points. First, he claimed he was not randomly selected and demanded strict proof.

     Second, he claimed the test invaded his privacy because the woman who supervised his urine sample "stood at his shoulder and was close enough (approximately a foot away) so that she could observe his genitals, which embarrassed him."

     The monitor disputed the privacy claim, and said that she was in a stall and that she was two to three feet away.

     On appeal, a three-judge panel said the fact that he was the only employee selected for testing that day and that many employees have never been selected for testing did not raise "a reasonable inference that he was not randomly selected."

     Moreover, as a correctional officer in a medium security institution, he had a diminished expectation of privacy. They said:

"... even assuming, as [the appellant] alleges, that [the monitor] stood a foot behind him as he provided the sample in a bathroom stall located in the restroom of a locker room in the correctional facility, we do not believe the manner of collection was so intrusive as to constitute an unreasonable search. ...

"Nor do we believe that the Constitution requires same-sex monitoring. In a similar circumstance, this court has held that surveillance of male inmates by female guards, including observation of them in the bathroom and shower, was not unreasonable, noting that the sex-neutral practice "neither impermissibly violated the inmates' privacy nor the guards' equal opportunity rights." Timm v. Gunter, 917 F.2d 1093 at 1102 (8th Cir. 1990), cert. den., 501 U.S. 1209, 111 S. Ct. 2807 (1991).

"In this case, we also note that [the monitor], as an employee of an independent company, would not encounter [the appellant] on a regular basis and, if she were able to see [his] genitals as he provided the sample, any such observation would have been fleeting. See Michenfelder v. Sumner, 860 F.2d 328 at 334 (9th Cir. 1988) (female guards' infrequent observation of nude male inmates did not violate the Constitution). In addition, we note that [the appellant] did not object or ask for a male monitor."

     Booker v. City of St. Louis, #02-1114, 309 F.3d 464, 2002 U.S. App. Lexis 22705 (8th Cir. 2002). [PDF]

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

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Federal agencies must now conduct privacy impact assessments before developing or procuring information technology or collecting new kinds of personal information.

     The E-Government Act of 2002 requires federal agencies to conduct a privacy impact assessment stating what information is to be collected, why it will be collected, the purpose of the information, how the information will be shared, and what notice would be provided to individuals.

     Generally, privacy impact assessments must be published. The White House Office of Management and Budget will issue guidelines for the assessments. An Office of Electronic Government will be created within the OMB.

     Generally, national security systems are exempt from the new law.

     Federal courts are required to have "a website that contains or has links to websites that publish docket information for each case, the "substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format."

     The site also must allow "Access to documents filed with the courthouse in electronic form."

     • Click here to view or download H.R. 2954, the E-Government Act of 2002, on AELE's website. The President signed the Bill on Dec. 17, 2002. [PDF]

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Federal court finds that an order to take a FFDE is not an "adverse action" that violates an officer's civil rights. The fact that the officer filed seven allegedly unfounded harassment complaints justified the requirement.

     An Indiana sheriff's sergeant was demoted for falsifying her time cards. She filed seven complaints of sexual harassment, most of which depended on her credibility versus coworkers. She was ordered to take a psychological exam, and was suspended for 15 days for making false allegations.

     She sued in federal court for harassment and retaliation, and the defendants sought dismissal of all counts. In addition to the contested suspension, she alleged that the psychological exam "subjected [her] to humiliation and embarrassment among her coworkers," and "significantly affected the terms and conditions of her employment." An anonymous cartoon circulated within the sheriff's department depicting the sheriff and a doctor who stated that the plaintiff was "crazy."

     First, the court held that the events she complained of did not rise to the necessary level to sustain a harassment complaint.

     Second, the judge noted that employees cannot be retaliated against for bringing harassment claims, unless they are false. The court said the 15-day suspension constituted adverse employment action, but submitting to a psychological evaluation was not an adverse employment action. The judge wrote:

"... the psychological testing ordered in this case does not appear to rise to the level of an adverse employment action. [The plaintiff] was suspected of filing seven unfounded complaints against her coworkers in her first two weeks back on the job after a vacation. Following an investigation, Captain C__ concluded that none of the complaints could be substantiated and that the truth of the allegations in each case turned on [her] credibility. [The plaintiff] does not directly dispute the basis of suspicion underlying the psychological exam."

     The court dismissed all counts except the claim that the suspension was retaliatory, which must be decided by a jury. McKnight v. Monroe Co. Sheriff's Dept., # IP 00-1880-C-B, 2002 U.S. Dist. Lexis 18148, 90 FEP Cases (BNA) 35 (S.D.Ind. 2002).

     • Click here to read the decision on AELE's website.

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Federal court upholds the termination of a 15+ year police officer that had 20/80 vision in one eye.

     From 1983-1999 the plaintiff worked as a transit police officer in greater Philadelphia. Since age ten he has had a visual impairment known as amblyopia, or "lazy eye." For most of his life the visual acuity of his left eye was anywhere between 20/60 and 20/80. His right eye was 20/20 without correction. The impairment did not impede his work, and he even received a commendation for assisting in the capture of two robbers.

     As a result of testing his eyesight with new equipment, he was found unfit for continued employment and was terminated. He sued under the ADA, alleging that management perceived him as disabled, and used the eye standards to separate him without paying his pension.

     The District Court judge rejected those claims. Amblyopia is not a disability. 20/80 vision in one eye is not a disability. His impairment does not prevent him from employment in a broad range of jobs, and he currently had an offer from the United Nations to work as a Peacekeeper in Kosovo.

     Management did not perceive him as disabled. Management said, consistently, that minimum corrected eyesight standards would be enforced. A mere supposition that the agency was trying to avoid paying him a pension was not supported by any proof.

     Knoll v. SEPTA, #01-2711, 2002 U.S. Dist. Lexis 17164 (E.D. Pa. 2002).

     • Click here to read the decision on AELE's website.

     Editor's Note: Other courts have sustained the removal of an officer who is able to perform his duties in a satisfactory manner, but has impaired eyesight. Lockman v. Van Voris, 81 Misc.2d 692, 366 N.Y.S.2d 536 (Albany Co. N.Y. 1975). In many jurisdictions, the bargaining agreement provides for two minimum standards -- a stringent one for induction, and a relaxed one for retention. See also, "Medical Standards for Continued Military Service."

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The fact that a firefighter died while performing mutual aid duties did not allow his widow the right to sue the agencies that requested assistance. The requesting and responding agencies had not signed a formal mutual aid agreement, which would have permitted a wrongful death action.

     The widow of a Yakima City firefighter who drowned during a search and rescue effort filed a wrongful death suit against the county and an irrigation district. She claimed that there was inadequate planning, equipment, and safety preparation for the dives in light of the temperature, visibility, current, depth, and confined space of the irrigation canal.

     Under Washington state law, search & rescue volunteers are entitled to worker's compensation for an injury or death arising out of volunteer missions. However, search & rescue volunteers are barred from bringing suit against a governmental entity for an injury or death arising out of "activities as an emergency worker."

     Here, the deceased firefighter responded under a mutual aid request. Under another state statute, firefighters and law enforcement officers (and next of kin) can bring a lawsuit for their injuries.

     The Washington Supreme Court noted that the deceased was both S&R volunteer and a firefighter. If he had responded to the call as a fire fighter or pursuant to a mutual aid agreement, his widow would be entitled to bring suit for negligence, but if he responded as an S&R volunteer, the county has statutory immunity.

     Although diving was one of the deceased's normal duties as a city firefighter, as a member of the Technical Rescue Team, the rescue at the irrigation district was 20 miles outside the city limits.

     Worse, there was no formal mutual aid agreement in place, even though the deceased was under the impression that there was one. The court said:

"We recognize that H__'s battalion chief believed that H__ was responding to a mutual aid call. Unfortunately, the chief's subjective belief is not enough to impose liability upon the county."

     The Yakima F.D. official logs noted the deceased responded to a mutual aid call. But it is common to log calls as "mutual aid" whether or not they are pursuant to a formalized mutual aid agreement. The entry did not change the legal status of the response. Hauber v. Yakima County, #71618-8, 56 P.3d 559, 2002 Wash. Lexis 666 (Wash. 2002).

     • Click here to read the decision on the FindLaw website.

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Age Discrimination - Promotion/Assignment

     Fifth Circuit upholds an ADEA jury verdict of $109,222 to a 57-year old District Chief who was denied a promotion to Asst. Chief because of age. Although Title VII requires that plaintiffs receive an EEOC right-to-sue notice, the ADEA has no such requirement. Julian v. City of Houston, #01-20541, 2002 U.S. App. Lexis 25427 (5th Cir. 2002). Click to read our prior article (Aug. 2002).

Arbitration Procedures

     Supreme Court holds that the question of whether the parties have submitted a particular dispute to arbitration is an issue for the courts to decide. Also, a disagreement about whether an arbitration clause applies to a particular controversy is for the court. But all "procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide." Howsam v. Dean Witter Reynolds, #01-800, 2002 U.S. Lexis 9235 (2002). [PDF]

     N.Y. holds that the calculation of retirement benefits earned under state law are arbitrable. City of Johnstown and Johnstown PBA; City of Schenectady and Schenectady PBA, #155/6, 2002 N.Y. Lexis 3801, 2002 N.Y. Slip Op. --- (N.Y. 2002). [PDF]

Citizenship Requirements

     Federal court refuses to dismiss the complaint and orders the Transportation Security Administration to consider noncitizens for airport screener posts. Gebin v. Mineta, #02-CV-0493, 2002 U.S. Dist. Lexis 22211, 90 FEP Cases (BNA) 417 (C.D.Cal. 2002). [PDF]

Civil Liability

     Seventh Circuit holds that a §1983 suit against state officials for injunctive relief is not barred by the Eleventh Amendment. Nanda v. Univ. of Illinois, #01-3448, 303 F.3d 817, 2002 U.S. App. Lexis 19105, 89 FEP Cases (BNA) 1616 (7th Cir. 2002). [PDF]

Collective Bargaining - Duty to Bargain

     Pennsylvania appellate court holds that management did not have to bargain over a change in weight given to test components of the state police promotional procedures. The change did not impact on police duties. Penn State Troopers Assn. v. PLRB, # 698 CD 2002, 809 A.2d 422, 2002 Pa. Commw. Lexis 847, 171 LRRM (BNA) 2223 (Pa. Commw. Ct. 2002). [PDF]

Disciplinary Investigations

     In an internal investigation of threats left on a manager's voicemail, an employee may be compelled to give a voice exemplar for comparative purposes; a voiceprint sample is not a testimonial statement and does not implicate the Fifth Amendment. Veazey v. LaSalle Telecom, #1-02-0517, 2002 Ill. App. Lexis 992 (1st Dist. 2002), relying on U.S. v. Dionisio, 410 U.S. 1 (1973), U.S. v. Wade, 388 U.S. 218 (1967) and Peo. v. Davis, 151 Ill. App. 3d 435, 502 N.E.2d 780 (1986).

Disciplinary Searches

     Eighth Circuit reverses a lower court ruling that had suppressed the evidence obtained by a search warrant that was faxed to Yahoo. "The Fourth Amendment does not explicitly require official presence during a warrant's execution, therefore it is not an automatic violation if no officer is present during a search." U.S. v. Bach, #02-1238, 310 F.3d 1063, 2002 U.S. App. Lexis 23726 (8th Cir. 2002). [PDF]

     Supreme Court declines to hear FBI Director's appeal. Fourth Circuit allowed a former Dept. of Energy whistleblower to sue the Director after agents gained entry to his home by allegedly bullying his roommate, and then seized his computer's hard drive. Freeh v. Trulock, 02-443, 2002 U.S. Lexis 8703, 71 U.S.L.W. 3387 (2002); rptd. below sub nom Trulock v. Freeh, #00-2260, 275 F.3d 391 (4th Cir.). Trulock exposed penetration of the Los Alamos Lab by Chinese intelligence agents; see our prior article in the April 2002 issue.

Discovery, Publicity and Media Rights

     Texas appellate court holds that the state's Public Information Act required a city to disclose the reasons it rejected a police applicant. A statutory exception for internal records that, if released, would interfere with law enforcement did not apply. City of Fort Worth v. Cornyn, #03-02-00074-CV, 86 S.W.3d 320, 2002 Tex. App. Lexis 6643, 19 IER Cases (BNA) 120 (Tex. App.3d Dist. 2002).

Free Speech

     NYC reinstates and pays $327,500 to a former police officer that was fired after criticizing the fatal shooting of Amadou Diallo. Walton v. City of N.Y., prev. rptd. at 122 F.Supp.2d 466, 2000 U.S. Dist. Lexis 17008, 17 IER (BNA) Cases 49 (S.D.N.Y); settlement rptd. by Associated Press (Nov. 11, 2002).

Handicap Laws / Abilities Discrimination - In General

     Under Colorado law a sheriff, and not the Board of County Commissioners, is the employer of deputies for ADA discrimination purposes. Bristol v. Bd. of County Cmsnrs., #00-1053, 2002 U.S. App. Lexis 25511 (10th Cir. 2002).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Oregon appellate court holds that a corrections officer who takes a prescriptive anticoagulant drug, and who was advised to avoid contact with inmates because of a risk of serious internal bleeding, could be a "disabled person" under state law. Evans v. Multnomah County Sheriff's Office, #A112917, 184 Ore. App. 733, 57 P.3d 211, 2002 Ore. App. Lexis 1729, 13 AD Cases (BNA) 1256 (Or.App. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Impaired sleep, preventing an employee from working overtime is not a disability. Boerst v. General Mills, #00-3281, 25 Fed. Appx. 403, 2002 U.S. App. Lexis 813 (Unpub. 6th Cir. 2002).

     Symptoms from multiple sclerosis substantially limited the plaintiff's major life activities of concentrating and remembering. Gagliardo v. Connaught Labs, # 01-4045, 2002 U.S. App. Lexis 23953 (3d Cir. 2002). [PDF]

Health Insurance & Benefits

     Federal appeals court splits 9-to-4 to deny VA hospital benefits to retired service personnel who enlisted between 1941 and 1956, even though they were told by military recruiters they would receive free lifetime health care if they stayed in the service 20 years. In 1995 the Pentagon ended those benefits for veterans over 65 because they are eligible for Medicare. The majority found that the recruiters had no authority to make those promises. Schism v. U.S., #99-1402, 2002 U.S. App. Lexis 23769 (en banc, Fed.Cir. 2002).

Pay Disputes - In General

     Arbitrator holds that longevity pay is calculated on the basis of each entire year worked, and does not include a prorated credit for a partial year. Twp. of Austintown and FOP L- 126,117 LA (BNA) 900, AAA Case No. 53-390-00365-0 (Ruben, 2002).

Pay Disputes - Overtime Claims

     U.S. Court of Federal Claims holds that 9,000 federal prosecutors are entitled to overtime (and back pay) under the Federal Employees Pay Act, Doe v. U.S., #98-896C, 2002 U.S. Claims Lexis 304, 71 U.S.L.W. 1342 (Ct.Cl. 2002). [PDF]

Privacy Rights

     The Canadian Supreme Court has unanimously ruled that its federal security agency can block citizens from accessing their personal files on national security grounds. Ruby v. Solicitor General of Canada, #28029, 2002 SCC 75, 2002 Can. Sup. Ct. Lexis 85 (Sup. Ct. Canada 2002).

Psychological Exams and Standards - Fitness for Continued Duty

     Supreme Court declines to review a holding that a required Fitness For Duty Exam and minor disciplinary action did not meet the threshold level of substantiality required by Title VII's anti-retaliation clause. Perez v. Miami-Dade Co., #02-269, 2002 U.S. Lexis 9080, 71 U.S.L.W. 3398 (2002); decided below as Perez v. Penelas, #01-10348, 275 F.3d 53, 2001 U.S. App. Lexis 29818; reh. den. 2001 U.S. App. Lexis 29391 (Unpub. 11th Cir. 2002).

Race Discrimination - In General

     Supervisors who were sued in their individual capacities by a conservation law enforcement officer, for racial discrimination, were entitled to qualified immunity from his §1981 and §1983 claims. Felton v. Polles, #01-60104, 2002 U.S. App. Lexis 25968 (5th Cir. 2002). [PDF]

Racial Harassment

     Appellate court rejects a defamation and harassment suit, filed against the city by an Asian-American police officer, after his sergeant referred to him as a "little fucking gook" to another officer. The slur was not severe or pervasive. Herndon v. City of Everett, #49406-6-I, 2002 Wash. App. Lexis 2161, 113 Wn. App. 1031 (Unpub. Wash. App. 2002).

     A white manager at a correctional facility is allowed to proceed with federal racial harassment claims (including epithets and false accusations of engaging in Ku Klux Klan activities). Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002).

Sex Discrimination - In General

     A divided Seventh Circuit holds that a lateral transfer is not an "adverse personnel action" for Title VII purposes. White v. BNSF Ry., #00-6780, 310 F.3d 443, 2002 U.S. App. Lexis 23422; 2002 FED App. 0391P (6th Cir. 2002).

     N.Y appellate court holds that a commissioner's promotion of an employee with whom he had personal relationship did not create hostile work environment; an isolated act of preferential treatment of an employee, based on a consensual relationship, is not sex discrimination. Fella v. County of Rockland, 2001-06795, 747 N.Y.S.2d 588, 2002 N.Y. App. Div. Lexis 8871, 90 FEP Cases (BNA) 247 (App. Div. 2002).

     Federal court refuses to dismiss a retaliation and gender bias suit filed by a male corrections employee, who was fired after a history of conflict with women supervisors. Kulikowski v. Boulder County, #00-K-1472, 2002 U.S. Dist. Lexis 20361, 90 FEP Cases (BNA) 573 (D.Colo. 2002).

Union and Associational Activity

     A firefighter who was passed over for lieutenant after he headed a union committee to negotiate higher wages can proceed with his claim that the village retaliated against him for engaging in protected activity. Cunningham v. Village of Mount Prospect, #02CV4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002).

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Antiterrorism reports: GAO Online, Building Security: Security Responsibilities for Federally Owned and Leased Facilities and Using Biometrics for Border Security. [PDF]

Injuries to employees: Following the death of a firefighter, the Centers for Disease Control issues a NIOSH advisory warning against using humans in a burning structure posing as "victims" during fire training sessions.

Online article: Collective bargaining, "Implementing Changes in Expired Contracts," by John M. Collins, General Counsel, MA Chiefs of Police Assn., Nov. 2002 Police Chief magazine.

Online summary: "The e-clearance initiative." Explains the new three-part system of processing federal employment background investigations and security clearances.

Online whistleblower documents: A financial and a security memo on stolen, lost and missing property at the Los Alamos National Laboratory. [PDF]

Overtime claim website: New York City police officers have sued the City alleging a violation of the FLSA. The lawsuit contends that officers were not properly compensated for overtime hours worked, and that in many cases, the compensatory time off practices of the City violate federal law.

Privacy reports: "Information Management: Selected [Federal] Agencies' Handling of Personal Information," GAO Report GAO-02-1058 (Sept. 2002) [PDF] and "Employee Privacy: Computer-Use Monitoring Practices and Policies of Selected Companies," Report GAO-02-717 (Sept. 2002). [PDF]

Workplace safety website: Agency for Toxic Substances and Disease Registry

CROSS REFERENCES