Nebraska Supreme Court rejects a challenge to the state's peace officer decertification procedures.

     A Nebraska state trooper was accused of abusing his wife, providing false information to a law enforcement officer and violating the canons of ethics of the State Patrol. His behavioral actions constituted "incompetence, neglect of duty, and/or physical, mental, or emotional incapacity."

     The trooper defended on a substantive and procedural basis.

     First, he claimed that the allegations against him "were outside the scope of the rules and regulations regarding the revocation of certificates and that the allegations did not fit into the statutory definition of revocable actions." Second, he argued that the Nebraska Commission on Law Enforcement and Criminal Justice and the Nebraska Police Standards Advisory Council "lacked the requisite jurisdiction to consider the matters alleged in the complaint."

     At the hearing, the Council concluded that the trooper physically abused his wife several times in 1998 and lied to an investigating officer regarding one of those occasions. The Commission then revoked his certification as a law enforcement officer.

     The trooper appealed to the district court under the Administrative Procedures Act. The trial court reversed the Commission's decision, concluding that it was made in excess of the Commission's statutory authority or jurisdiction.

     The trial court also concluded that the Commission's decision was made upon unlawful procedure in that it had no power to revoke Hauser's certification and, further, that there were no rules and regulations governing the revocation of certificates passed by the Council.

     The Nebraska Supreme Court reversed, 7-to-0. The Justices concluded that the trial court erred in concluding that the regulations promulgated concerning the revocation of certificates was invalid.

     The Court remanded the appeal to the trial court for further proceedings on the merits. Hauser v. Nebraska Police Standards Advisory Council, #S-01-467, 264 Neb. 605, 650 N.W.2d 760, 2002 Neb. Lexis 197 (2002). [PDF]

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

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Federal appeals court rejects a libel action brought by a former FBI official who was accused of having advance knowledge about the 1998 Pan Am 103 bombing.

     Oliver "Buck" Revell was in the FBI for thirty years, retiring as Associate Deputy Director. He had served on various boards, committees and task forces concerned with terrorism. Revell is the president of the Law Enforcement Training Network.

     In his book, "The Oklahoma City Bombing and the Politics of Terror," David Hoffman wrote that:

"... a Palestinian named Samra Mahayoun warned authorities in Helsinki that a Pan Am 747 leaving Frankfurt was to [be] bombed within two weeks." [p. 170]

"Several minutes before flight 103 took off from London's Heathrow airport, FBI Assistant Director Oliver "Buck" Revell rushed out to the tarmac and pulled his son and daughter-in-law off the plane. [p. 313]

     Hoffman also suggested that Revell and Marine LTC Oliver North wanted to create a "death squad" to "assassinate people they would identify as terrorists." [p. 63]

     Revell sued Hoffman and others for libel. A federal court in Oklahoma granted the defendants' summary judgment motion -- holding that Revell failed to offer sufficient evidence from which a reasonable jury could conclude that defendants acted with "actual malice." In the case of public figures, actual malice is required under New York Times v. Sullivan, 376 U.S. 254 (1964) at 279-80.

     On appeal, Revell argued that he is no longer was a public official, after his retirement from the FBI. A three-judge appellate panel disagreed.

"That the person defamed no longer holds the same position does not by itself strip him of his status as a public official for constitutional purposes. If the defamatory remarks relate to his conduct while he was a public official and the manner in which he performed his responsibilities is still a matter of public interest, he remains a public official within the meaning of New York Times."

     The panel said that actual malice "is a subjective inquiry" and "is not based on whether a reasonably prudent person would have conducted further investigation prior to publishing."

     That means that Revell had to offer evidence concerning the author's subjective state of mind, which he failed to do. Moreover, there was "no evidence that Hoffman purposefully avoided the truth" and in fact, he "conducted an investigation prior to publishing."

     The appellate court concluded that there was no evidence "that might call into question the veracity of Hoffman's sources." Revell v. Hoffman, #01-6169, 2002 U.S. App. Lexis 22624 (10th Cir. 2002).

     • Click here to read the 10th Circuit's decision on the Internet.

     Note: Hoffman's book "The Oklahoma City Bombing and the Politics of Terror," is online at www.constitution.org/ocbpt/ocbpt.htm. Citing ABC's 20/20 and Time magazine, Hoffman claims "that the ATF had advance warning" of the Oklahoma City bombing, and that "terrorist acts are used by the government to increase wiretapping, search and seizure, and invasive surveillance of private citizens."

     Hoffman, the publisher of the Haight Ashbury Free Press, was indicted for tampering with the grand jury investigating the 1995 Oklahoma City bombing. He sent copies of his book, along with cover letters, to the grand jurors in an alleged attempt to influence the outcome. He subsequently pled guilty to two misdemeanor counts and received a suspended sentence plus 200 hours of community service. Hoffman also unsuccessfully sued the FBI under the Freedom of Information Act. Hoffman v. Fed. Bur. of Inv., #98-CV-1733 (W.D. Okla. 9/21/01) (Order denying motion to compel production of tapes and materials).

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Arbitrator reduces a penalty from termination to a 120-day suspension. Officer was drinking in a bar on his beat and had consensual sex in a vehicle, stopped in a public park.

     A Texas police officer was charged with sexual assault, but was later acquitted of the criminal charge. Management indefinitely suspended the officer, who admitted that he had sex with a woman in a public park. In Texas, an "indefinite suspension" is the equivalent of being fired. The officer grieved.

      The city thought that there were other aggravating factors. The park was within his duty beat, and the couple engaged in "littering" by throwing a used condom and wrapper outside the car window.

     At the subsequent arbitration hearing the grievant admitted engaging in consensual sexual activity in his private vehicle, while parked in a public park. No one saw the sexual act or complained about it except for the officer's sexual partner. Counsel for the officer argued "that such affairs exist in the private lives of countless individuals everyday." The arbitrator weighed the testimony, and believed the officer's version that the sexual activity was consensual. The arbitrator then said:

"The City has shown from the preponderance of the evidence that the Grievant exercised poor judgment ... [and] had previously been counseled regarding drinking in bars located in his work beat. .... The Grievant's actions brought unwelcomed publicity upon the Department ... [and] warrant progressive disciplinary action but they do not warrant termination."

     The indefinite suspension was reduced to a one hundred and twenty days suspension without pay. City of Port Arthur and P. A. Police Officers Assn., AAA Case No. 70-390-00208-2, 117 LA (BNA) 760 (Moore, 2002).

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

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Tenth Circuit rules against a former detective in the JonBenet Ramsey murder case who, because of the chief's gag order, was unable to publicly defend herself against media allegations of incompetence.

    Six-year-old JonBenet Ramsey was murdered inside her home in Boulder, Colorado, in 1996. The plaintiff, a detective, was present when the body was found. She worked on the murder investigation until she was removed from the case in May 1997 by the then Chief of Police. During the course of the investigation, she and other officers were widely criticized in the media. The Chief imposed a gag order prohibiting anyone in the police dept. from speaking or responding to the media about the Ramsey investigation.

     Feeling that her reputation was tainted, she retained an attorney who sent a letter to the Chief listing eight allegedly false statements made about the detective. He wrote that no one has made any effort to correct the media's factual errors and that she has become a scapegoat.

     The detective then filed suit, claiming a violation of her First Amendment right to speak out on a matter of public concern, because of the gag order. She named the city and the former chief as defendants, and claimed that the allegations of incompetence were false and harmed her reputation.

     It should be noted that the Supreme Court has distinguished statements by (or gag orders of) a public employee who speaks as a citizen on matters of public concern, versus a public employee who speaks "upon matters only of personal interest." Connick v. Myers, 461 U.S. 138 (1983) at 147-48. Here, the trial court concluded that the speech she was prevented from making was not a "matter of public concern." On appeal, a three-judge panel said:

"The government's burden of demonstrating that its interests outweigh the interests of the speakers is greater in cases involving a prior restraint as opposed to cases involving isolated disciplinary action. * * *

"... we conclude that ... her proposed speech addressed purely personal concerns, not matters of public concern. ... she sought, through her proposed speech, to clear her personal reputation and restore her personal good name."

     Plaintiff's counsel argued that, even if the content of her speech primarily sought to restore her personal reputation, "the performance and integrity of a highly visible public official" necessarily is a matter of public concern.

     The panel agreed that "the performance and integrity of a public official could be a matter of public concern, that is not always so." Here, she "was motivated to salvage her personal reputation, and ... her proposed speech was tailored to achieve that goal."

     Because the gag order affected only her personal concerns, the panel affirmed the District Court's judgment for the defendants. Arndt v. Koby, #01-1356, 2002 U.S. App. Lexis 22701 (10th Cir. 2002).

     • Click here to read the 10th Circuit's decision on the Internet.

     • Boulder Police Dept's Ramsey case informational website.

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Arbitrator disallows a fire union's grievance complaining about a reduction in overtime after more firefighters were hired.

     The arbitrator noted that during periods of community population growth, a staffing past practice "may no longer be feasible." Past practices would normally apply, but are not mechanically adopted if conditions change.

     While increased staffing diminished the opportunities to work overtime, there was no language in the bargaining agreement that guaranteed overtime.

     "This absence leaves the matter of determining overtime squarely within management rights." City of Claremore and IAFF L-1077, FMCS Case #01/0627-12769-8, 117 LA (BNA) 722 (Marks-Barnett, 2002).

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

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Federal court affirms a county's liability for retaliatory action after several officers engaged in "informational picketing," but reduces the jury's verdict of $300,000 per officer to $75,000 per officer. Burden of proving that plaintiffs failed to mitigate their damages fell on the employer.

     In 1997 several correctional officers, participated as F.O.P. members, in "informational pickets." The then Warden purportedly engaged in various forms of retaliatory behavior against them including selectively imposed discipline.

     They sued in federal court, and the jury awarded each plaintiff $300,000 for emotional distress.

     On a motion to set aside the verdict, the District Judge said that each plaintiff made some showing of emotional distress such as increased stress in one's marriage, embarrassment due to one's financial situation, and uncertainty over their employment situation. One plaintiff testified to physical manifestations (including weight gain and increased sleepiness); another began medication for stress and had problems eating and sleeping.

     However, the award of $300,000 was excessive, and $75,000 per Plaintiff is "more in line with other awards in cases brought under 42 U.S.C. §1983 where plaintiffs suffered similar harms."

     The court rejected the County's claim that the plaintiffs failed to mitigate their damages by accepting alternative employment. While there is a duty in a §1983 case to attempt to mitigate damages "the burden of proving that there has been a failure to mitigate falls on the defendant," which was not put into evidence.

     The Court also found that Plaintiffs' counsel was entitled fees and costs in the amount of $196,894.

     Clopp v. Atlantic County, #00-1103, 2002 U.S. Dist. Lexis 18898, 170 LRRM (BNA) 3260 (D.N.J. 2002).

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

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Appellate court sets aside a $75,000 jury verdict. City's attorney allowed third parties to observe a large photo of a naked woman -- the wife of a city employee who had used a city-owned digital camera to make the photograph.

     A city employee used a city digital camera to take photos of his wife with a bare torso. The photos were found on a city computer, and apparently were viewed by members of the police dept. The employee was fired after a closed hearing, but the city's attorney allowed various individuals to observe a headless photo of the wife, that had been enlarged to poster size.

     The events, including a reference to the photos, were reported in the local newspaper, and on a private website. Humiliated, the wife sued the city's lawyer for "outrageous conduct." The jury awarded her $50,000 in future damages and $25,000 in punitive relief.

     A three-judge appeals panel has reversed, saying:

"Even though the complained-of acts may have been deliberate or even malicious and calculated to humiliate [the plaintiff], we do not believe the acts rise to the level of extremeness and outrageousness required by the Texas Supreme Court. ...

"While such alleged acts could be characterized as rude and unprofessional, such insensitive indignities do not, as a matter of law, meet the threshold for outrageous and extreme conduct as required to permit recovery for intentional infliction of emotional distress as defined by the Texas Supreme Court."

     In Texas, the conduct must be so outrageous in character and so extreme in degree, that the conduct goes beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

     Haynes & Boone v. Chason, #12-00-00374-CV, 81 S.W.3d 307, 2001 Tex. App. Lexis 8596 (2001; rev. den. 2002).

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

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Appeals court rejects a damage suit filed by a rejected promotional candidate who said the chief blacklisted him because he had been critical of the chief's policies.

     A police sergeant sued the chief for emotional distress, after he was passed over for lieutenant.

     During the trial it was revealed that the plaintiff and chief did not like one another because of the plaintiff's criticism of the chief's leadership. One police officer testified that the chief had stated, "That kid will never be a lieutenant as long as I'm chief."

     The plaintiff claimed the chief had blacklisted him despite his qualifications, which caused emotional distress.

     The trial court dismissed the action, and an appellate court has affirmed, saying:

"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society. ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. ...

"Viewing the evidence in the light most favorable to the plaintiff, we conclude that [the chief's] conduct did not constitute extreme and outrageous conduct. ... Although the evidence revealed that [the chief] did not hold the plaintiff in high regard, spoke ill of him and] did not want to promote him, such conduct in this case does not go ]beyond all possible bounds of decency."

     The panel then added "the plaintiff's own conduct contributed to the hostile relationship" because he was outspoken in his criticism of the chief. Bombalicki v. Pastore, #AC 21719, 71 Conn. App. 835, 804 A.2d 856, 2002 Conn. App. Lexis 448,18 IER Cases (BNA) 1791 (2002).

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

     Editor's Note: The remedy for a rejected promotional candidate is to file an administrative appeal (if the procedures so allow) or to judicially challenge the action. However, most states hold that a person does not have a legally-protected property right to receive a promotion -- so that route usually goes nowhere. See Nunez v. Los Angeles, #97-55139, 147 F.3d 867, 1998 U.S. App. Lexis 11720 (9th Cir.), Pollock v. Ocean City, 968 F.Supp. 187 (D.N.J. 1997), Olive v. Scottsdale, 969 F.Supp. 564 (D.Ariz. 1996) and Russo v. White, 775 F.Supp. 639 (S.D.N.Y. 1991).

     An exception is when there is proof the promotion was denied in retaliation for exercising a candidate's rights of free speech. Tao v. Freeh, 65 FEP Cases (BNA) 385, 27 F.3d 637 (D.C. Cir. 1994). The subject matter of the "speech" must address a matter of public concern, an intra-office disagreement of only personal interest." Connick v. Myers, 461 U.S. 138 (1983) at 147-48.

     Courts also have ruled that management is not required to explain or justify why it passes over one candidate and selects another. Sharp v. Co. of Los Angeles, 18 Cal.Rptr.2d 406 (App. 1993).

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EEOC District Office finds that a police officer was "disabled" and that ordering him to submit to additional fitness for duty evaluations was unlawful.

     Because of several encounters with coworkers, a Phoenix area police officer was ordered to participate in a psychological fitness for duty evaluation (FFDE). Under IACP guidelines, the purpose of a FFDE is to identify "the presence or absence of job-related personality traits, characteristics, disorders, propensities, or conditions that would interfere with the performance of essential job functions."

     At the first two meetings with the psychologist, the officer did not finish the battery of tests. The psychologist supposedly informed management that although the testing process was incomplete, the officer was "not psychologically fit for duty." At a third meeting with the psychologist, his commander and three officers placed him on FMLA leave, relieved him of his ID and weapon, and escorted him home.

     The officer filed a disability complaint with the local office of the EEOC, alleging the city considered him to be disabled. In response to that complaint, the city's Human Resources Administration replied that the officer had "demonstrated behaviors such as nervousness, lack of appetite, staring, inability to focus, repeating himself, sudden mood swings and excessive anger ..."

     One sergeant reported that the officer "yelled, pounded the walls ... and periodically ranted about [the] chief ..." A fellow officer had said the complainant was "paranoid and negatively obsessed with [the] Chief of Police" and was "on the verge of tears." The city denied regarding the officer as disabled or engaging in discriminatory treatment.

     The EEOC has issued a determination that the city "failed to provide any specificity that would justify their position or otherwise establish that he was a direct threat to anyone." Moreover, "continued efforts by an employer to require an employee to provide more documentation and/or submit to additional medical examinations could be considered retaliation."

     The EEOC found that the officer had a disability and was discriminated against by "requiring him to submit to a psychological examination, in violation of the ADA" and by denying his request to return to active duty after the officer's physician declared him fit for duty.

     The officer, during the pendency of the EEOC complaint made an application for a disability retirement, but withdrew the application on the advice of his attorney. EEOC ex rel. Tucker and City of Tempe Police Dept., #350-A1-2326 (2002).

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

     Editor's Comment: A District Office "Determination" is a nonprecedential and nonbinding administrative decision.

     • Click here to read or download the IACP Psychological Section's Fitness For Duty Guidelines.

     • Click here to read or download EEOC's Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities.

     Research Note: Although not mentioned in the EEOC's Determination, once an employee returns from authorized FMLA with a letter, from the employee's health care provider, recommending a return to work, the employer may NOT order a confirming examination, 29 U.S. Code §2614(a)(4) and 29 C.F.R. §825.310(c). There are two recognized exceptions:

     1. There is a history of requiring return-to-duty such exams (and if there is a bargaining agreement, it perpetuates recognized past practices). Conroy v. Township of Lower Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460, 7 WH Cases2d (BNA) 365 (Unpub. E.D. Pa.).

     2. The request is based on behavior that is observed subsequent to the return to duty request. Routes v. Henderson, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768 (Unpub. S.D. Ind. 1999); Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (Unpub. D.Ore. 1999); Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass. 1998).

     The FMLA is not enforced by the EEOC, but by the Wage and Hour Div. of the U.S. Dept. of Labor's Employment Standards Administration. Under the ADA, the EEOC enforces employment-related complaints, and the Justice Dept's Civil Rights Div. enforces access-related complaints.

     As stated in the Postal Service case, Albert v. Runyon:

"The FMLA does not authorize an employer to make its own determination of whether an employee is fit to return from FMLA leave following recovery from a serious health condition. Rather, an employer must rely on the evaluation done by the employee's own clinician and return the employee to work without delay upon receipt of medical certification. This certification may be a 'simple statement of any employee's ability to return to work,' and need not contain the specific information about the employee's condition ...

"Moreover, requiring [the employee] to undergo a psychological examination was not the proper way for the Postal Service to resolve any legitimate concerns it might have had about her abilities and possible restrictions on her activities. An employer with questions about the scope or adequacy of a medical certification may take advantage of the FMLA provision allowing it to contact the employee's clinician for clarification, but may not force an employee to submit to a further examination before allowing her to return to work." 6 F.Supp.2d 57 at 62-63; 1998 U.S. Dist. Lexis 7505 at *15-16.

     • Click here to read the Labor Dept's regulation 29 C.F.R. 825.310, "Under what circumstances may an employer require that an employee submit a medical certification that the employee is able (or unable) to return."

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Second Circuit affirms damages of $50,000 each for 24 officers who were involuntarily transferred, because of their race, following the Abner Louima torture scandal.

     Following the 1997 incident where Haitian immigrant Abner Louima was tortured by NYPD officers in the 70th Precinct, the Commissioner and Mayor met with community leaders "to discuss an appropriate response." The Commissioner Safir decided to assign additional black and Hispanic police officers to the 70th Precinct.

     Two unions, 22 patrol officers and 2 sergeants filed suit, claiming that their involuntary transfers were racially motivated. The city did not dispute that race was the basis for the transfers, but argued that race-based assignments were necessary to ameliorate racial tensions.

     The plaintiffs' testified that, "far from being welcomed by black residents of the 70th Precinct, [they] endured frequent insults and epithets from community members angry about the Louima assault."

     The jury heard testimony that there was no rioting, looting, or other violence in the 70th Precinct itself following the Louima incident. A plaintiffs' expert testified that the city could have more effectively responded to community concerns by assigning Creole-speaking Haitian-American officers and officers trained in police-community relations to the precinct.

     After the close of evidence, the trial judge instructed the jury that if it found in favor of a plaintiff on any claim, it could award damages to compensate a plaintiff for his or her injuries, including "lost wages or lost promotion and career opportunities, as well as damages for physical pain and suffering, mental anguish, shock, fear, humiliation, and discomfort."

     The jury returned two verdicts. In the second verdict, it found that only one officer had suffered an adverse employment action, but awarded $50,000 to each of the plaintiffs. The foreperson stated that all the damages were for emotional distress, and that the damages for nine plaintiffs was based on physical symptoms, and the damages for the other plaintiffs was based on corroborating evidence.

     On appeal, the city argued that a jury "should not be allowed to second guess the Commissioner's decision to implement the transfers, since the decision was made in the context of the emergency situation following the brutalization of Abner Louima."

     The three-judge appeals panel disagreed -- noting that the invocation of an emergency to justify a racial classification resembled the forcible internment of Japanese-Americans during WW-II "and we are not inclined to repeat the same mistakes today." They added:

"There may indeed be occasions where race-conscious transfer of police officers is a constitutionally permissible means of improving law enforcement ... or as an immediate response to an emergency situation. The jury concluded that this was not such an occasion. Since the evidence reasonably supported the jury's verdict, we conclude that the district court correctly denied the motion for judgment as a matter of law."

     The panel said that the testimony was sufficient to support the jury's damage awards and the award of $50,000 per plaintiff "is well within the range of acceptable awards for emotional distress in civil rights cases." Patrolmen's Benevolent Assn. v. City of New York, 00-9538, 310 F.3d 43, 2002 U.S. App. Lexis 21656, 90 FEP Cases (BNA) 1 (2nd Cir. 2002).

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

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Federal court refuses to dismiss a private citizen's §1983 suit for harassing conduct, brought against a detective and village.

     A police detective had a consensual sexual relationship with the plaintiff until she became pregnant. She alleges that the detective harassed her and violated her federally protected civil rights. She sued the officer and the Village under 42 U.S. Code §1983. The defendants moved to dismiss the complaint.

     The harassment consisted of repeated telephone calls, confrontations, and making indecent or sexual suggestions -- some of which took place while the defendant was on duty. She also alleged that various policymaking Village officials and the Chief Police were aware of the harassment.

     The court noted that the complaint alleged that the Chief of Police and other officials were aware of the conduct, "yet took no steps to address or rectify said situation." The judge said that "If any of these individuals was a policy making official, the amended complaint sufficiently alleges the requisite indifference."

     The defendant's motion to dismiss the complaint was denied. Blasetti v. Pietropolo, #02 Civ. 2792, 213 F.Supp.2d 425, 2002 U.S. Dist. Lexis 14351 (S.D.N.Y. 2002).

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

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Injured N.C. firefighter could simultaneously recover under the Worker's Comp. Act and sue an instructor for willful and wantonly negligent conduct.

     A firefighter sued the county, the fire dept. and an instructor, after he was engulfed by flames and suffered severe burns and pulmonary injuries during a training exercise. The fire dept. had set a house on fire and firefighters were instructed to enter the house and to conduct a search and rescue operation.

     In general, workers' comp. laws provide an exclusive remedy for damages, and coworkers are immune from lawsuits. There are few exceptions to this rule, but one found in most states is when the superior or coworker has engaged in intentional misconduct which the defendant knew was substantially certain to cause serious injury or death.

     The North Carolina Court of Appeals ruled that the instructor should be held to the same standard as a co-employee, and the injured firefighter could bring a civil action against the instructor by alleging willful and wantonly negligent behavior, while also maintaining an action under the Workers' Compensation Act.

     Seymour v. Lenoir County, #COA01-972, 567 S.E.2d 799, 2002 N.C. App. Lexis 914 (2002).

     • Click here to read the decision on the Internet.

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Federal appeals court affirms $1.25 million in compensatory and $110,000 in punitive damages awarded to a former NYPD officer for harassment, retaliation, a forced resignation and the intentional infliction of emotional distress.

     The plaintiff, a NYPD officer, claimed that after she complained of harassment, the Precinct Commander ordered his subordinates to "ride her" -- which entailed vigilantly scrutinizing her actions and creating a disciplinary record against her by "writing her up" even for minor infractions of rules and perceived insubordination. He also subjected her to shift changes and transfers.

     She also claimed that the head of the medical services section "brought baseless disciplinary charges ... that caused her to be suspended without pay multiple times and created a misleading record to make her appear insubordinate."

     Then, officers from the NYPD's Internal Affairs Bureau appeared at her home demanding to conduct a drug test or to escort her to a facility where it would be performed. She refused because she "feared for her safety in accompanying the officers [and] was concerned that the results of the test could be altered."

     When disciplinary charges were brought against her, she resigned. A few weeks later she was arrested for a minor traffic violation and was held for 27 hours at the direction of another Precinct Commander, who was well aware of her status.

     In the station, she was subjected to a strip search, a breathalyzer test (which she passed) and charged with false impersonation of a police officer and possession of marijuana (allegedly found during a search of her car). The marijuana count was later dropped, and a jury found her not guilty of the impersonation charge

     She sued the city, various officials, and the two commanders and the medical officer. The jury awarded her $200,000 for lost past earnings, $800,000 for lost future earnings and $250,000 for emotional distress and related pain and suffering.

     The jury also found that punitive damages, in amounts to be determined by the Court, were warranted against three superior officers. The judge assessed $110,000 in punitive relief. The defendants appealed.

     A three-judge panel has affirmed. The plaintiff was a victim of retaliation. She was mistreated and repeatedly suspended for dubious reasons. She was forced off the job. After her departure, she was incarcerated and charged with a felony in an apparent attempt to cause her to suffer. The trial court had noted:

" At trial, [plaintiff] produced evidence that she was subjected to an unreasonable level of scrutiny, excessive hostility and unmerited disciplinary charges against which she continually had to defend. The Court finds that these actions were sufficiently severe and sustained to make working conditions intolerable for any reasonable person in [her] position. ...

     She had presented evidence that the defendants engaged in a concerted effort to cause her departure from the force, voluntary or otherwise. There was ample evidence to support the verdict and the amounts awarded. Gonzalez v. Bratton, #01-7826, 2002 U.S. App. Lexis 21521 (2nd Cir. 2002).

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

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Age Discrimination - In General

     Federal appeals court declines to overturn a $246,774 ADEA verdict because the plaintiff's economic expert allegedly lacked "sufficient facts and data, scientific principles, and reliable methods" to render a valid opinion. Hartley v. Dillard's, #02-1298, 2002 U.S. App. Lexis 23727 (8th Cir. 2002). [PDF]

Arbitration Procedures

     Terms of the bargaining agreement evidenced an intent and contractual obligation to arbitrate all disputes, and survives the expiration of the agreement. The Providence Journal Co. v. Providence Newspaper Guild, #01-2430, 308 F.3d 129, 171 LRRM (BNA) 2012, 2002 U.S. App. Lexis 21905 (1st Cir. 2002). (Reissued opinion)

     A seven-justice N.Y. Court of Appeals reversed an intermediate appellate decision that had overturned an arbitration award. Although both employees were guilty of safety violations, there was no public policy in New York which required public employers to terminate employees for their conduct. The arbitration awards, imposing a lesser penalty, were reinstated. NYCTA v. Transp. Workers Union, #106, 2002 N.Y. Lexis 2840, 2002 N.Y.Int. 0107 (N.Y., 2002).

     Michigan appellate court declines to overturn an arbitration award that reinstated a corrections officer who had an expunged arrest record for misdemeanor possession of marijuana in his home. Office of State Employer v. UAW Local 6000, 2002 WL 31082148 (Unpub. Mich.App. 2002).

     The American Arbitration Association's Labor Arbitration Rules and the National Rules for the Resolution of Employment Disputes were amended in 2002. See www.adr.org

Defamation - In General

     Jury awards an applicant for a federal immigration officer position over $30,000 in compensatory and $500,000 in punitive damages against a former employer who falsely accused him of theft and revealing classified military information. Ake v. Hirazumi, #994566, 45 (9) ATLA L. Rptr. (Unpub. Hawaii Cir. Ct. 2002).

Demotions

     Federal appeals court rejects a challenge to a demotion where the employee was never eligible for the promotion she received. Barrett v. Social Secur. Admin., #02-3081, 309 F.3d 781, 2002 U.S. App. Lexis 22425 (Fed Cir. 2002).

     California appellate court holds that officers who are reassigned to lower pay grades or who are deselected from bonus positions have a property interest in those pay grades or bonus positions, which invokes due process rights. LAPPL v. Los Angeles, #B151027, 102 Cal. App.4th 85, 124 Cal.Rptr.2d 911, 2002 Cal. App. Lexis 4653 (Cal. App. 2d Dist. 2002).

Disciplinary Appeals & Challenges - In General

     Although federal employees must elect which remedy to pursue, the MSPB has held that a Border Patrol Agent who chose to challenge her termination via grievance and arbitration was not precluded from taking an administrative appeal after the union refused to process her grievance. Rodriguez v. Dept. of Justice, #DA-0752-01-0211-I-2, 2002 MSPB Lexis 1196 (MSPB 2002).

Disciplinary Punishment - In General

     Federal appeals court reverses the firing of a 28-year postal employee who assisted another person with fraudulently obtaining a mortgage. The conduct, though criminal, was not egregious enough to warrant termination. O'Keefe v. U.S. Postal Service, #01-3280, 2002 U.S. App. Lexis 23061 (Fed. Cir. 2002).

Fair Retail Credit Act

     Employer settles with a rejected applicant who allegedly failed a background check. Employer failed to disclose the source of the derogatory information, in violation of the Fair Credit Reporting Act, 15 U.S. Code §1681. Cook v. U. S. F. I, #01-CVS-8171, 45 (9) ATLA L. Rptr. (Unpub. N.C. Super. Ct., Guilford Co. 2002).

Free Speech

     Appeals court rejects a First Amendment suit by an outspoken corrections officer who claimed that a superior was having an affair with another officer, and retaliated by denying him a promotion and imposing unfavorable assignments. The allegations did not implicate a matter of public concern. Albert v. Mitchell, #00-4271, 42 Fed. Appx. 691, 2002 U.S. App. Lexis 14845 (Unpub. 6th Cir. 2002).

Light Duty Assignments

     ADA does not require an employer to create a permanent light duty position. Watson v. Lithonia, #02-1423, 203 F.Supp.2d 1303, 2002 U.S. Dist. Lexis 9305, 13 AD Cases (BNA) 969 (7th Cir. 2002). [PDF]

National Origin Discrimination

     An allegedly discriminatory policy of classifying Hispanic employees as temporary employees for longer periods of time than white employees, which deprived them of longevity pay and retirement compensation was not a continuing violation for the purpose of avoiding the statutes of limitations. City of Hialeah v. Rojas, 2002 U.S. App. Lexis 23252 (11th Cir. 2002).

Racial Harassment

     Black former police officer, who endured racial taunts from white coworkers, will receive a court-approved settlement of $112,754, plus $84,246 in legal fees, for personal injury and emotional distress. Harrell v. Oak Hill, #6:02-cv-00018, 40 (1981) G.E.R.R. (BNA) 1033 (Unpub., M.D. Fla. 2002).

Retirement Rights and Benefits

     Pennsylvania appellate court holds that detectives employed by district attorneys are not members of a police force for early retirement purposes. Allegheny Co. Detectives Assn. v. Allegheny Co. Retirement Bd., #188 C.D. 2002, 804 A.2d 1285, 2002 Pa. Commw. Lexis 666 (Pa. Cmwlth. 2002). [PDF]

     California reserve police officer, who received minimum wage rate and served 1 or 2 days per month for 27 years, was not "honorably retired" to qualify for the right to carry a concealed firearm on retirement. Haas v. Meisner, 2002 Cal. App. Lexis 4933 (4th Dist. 2002).

Sexual Harassment - In General

     California's employment laws do not create employer liability when a nonemployee client or customer sexually harasses an employee. Salazar v. Diversified Paratransit, #B142840, 2002 Cal. App. Lexis 4869 (Cal. App. 2d Dist. 2002). [PDF]

Union and Associational Activity

     En banc appeals court holds that a nonunion employee is required to pay his share of the union's cost in recruiting members outside of the bargaining unit. Supreme Court denies review. United Food and Comm. Wrkrs. L-1036 v. NLRB, 284 F.3d 1099 (9th Cir. en banc); cert. den. Mulder v. NLRB, #01-1867, 71 U.S.L.W. 3338, 2002 U.S. Lexis 8430 (2002). [PDF]

Whistleblower Requirements and Protection

     Federal appeals court rejects the whistleblower claims of former employees who signed a release of claims "arising out of my employment at, or termination of employment." Thomas v. U.P.R.R., #01-2631, 308 F.3d 891, 2002 U.S. App. Lexis 21995 (8th Cir. 2002). [PDF]

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Book: "The Art of Anonymous Activism: Serving the Public While Surviving Public Service," a how-to whistleblower guide for public employees, by the Project On Government Oversight. ($10)

Canada: Privacy website - Canadian privacy legislation, news, and other resources.

News item: The U.S. Merit Systems Protection Board reports that 68% of all surveyed federal agencies fail to e-mail their current employees about job vacancies, and only 44% post job announcements on their agency websites. (10/21/02). "Agencies Fail to Use Obvious Recruitment Tools," MSPB Issues of Merit (Sep. 2002) p.3. [PDF]

Online Report: General Accounting Office Report to the Congress on the fraud and abuse of military travel cards. [PDF]

Online report: Recommendations for Change: Making the Public Service Work. U.S. Merit Systems Protection Board, Office of Policy and Evaluation (37 pp. Sept. 2002). Includes a recommendation to abolish the "Rule of Three" for promotions.

Online Report: Inspector General's Review of the FBI's Counterterrorism Program. OIG Report #02-38, Sep. 2002.

Online Report: Inspector General's Review of Allegations of a Double Standard of Discipline at the FBI, Nov. 2002. [PDF]

Revised Rules: OSHA has revised its rules on "Exit Routes, Emergency Action Plans, and Fire Prevention Plans." 67 Fed. Reg. 67950 (11/7/2002).

Tax Publication: IRS No. 3920, Tax Relief for Victims of Terrorist Attacks. [PDF]

CROSS REFERENCES