Massachusetts Supreme Court holds that management has no obligation to bargain with a police union over adopting a new policy requiring officers to enforce school attendance laws.

     A Massachusetts city ordered its police officers to perform specific duties when they encountered truant children. The union filed an unfair labor practice, claiming that management failed to negotiate the procedure.

     The state's Labor Relations Commission determined that the decision to require police officers to investigate suspected truants "was a core managerial decision concerning where to deploy public services." That decision was not subject to mandatory bargaining and the city had no duty to bargain over the deployment.

     The commission said, however, that management was required to bargain over the impact of such management decisions, where a change in operating procedures has an impact on the workload of officers. Both parties appealed.

     The Massachusetts Supreme Court affirmed the Commission's decision that management had no duty to bargain over the newly assigned duties. In a unanimous decision, the justices said:

"Setting the priorities for the deployment of law enforcement resources is purely a matter of policy. ... A city should not have to bargain over which types of infractions merit more attention from law enforcement than others. If the city of Worcester has decided that aggressive enforcement of the law mandating school attendance will reduce juvenile crime, or deter the formation of youth gangs, or otherwise contribute to the safety and well-being of the city, that is a policy decision for the city to make."

     The commission also determined that the city was required to bargain over the impact of the decision. The city did not appeal that order, so the supreme court did not decide whether there was a duty to bargain over the impact of the new procedure.

     City of Worcester v. Labor Relations Cmsn., #SJC-08712, 438 Mass. 177, 779 N.E.2d 630, 2002 Mass. Lexis 857 (2002).

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New York judge annuls a pay raise for a sheriff's pilot; management failed to bargain the increase with the union.

     No good deed will go unpunished, at least in a New York county 60 miles north of Manhattan. The Putnam County Sheriff decided to give his aviation officer a $6,300 annual supplement. The problem was that the officer is a member of the bargaining unit, and the union reacted negatively.

     The PBA filed an unfair labor practice charge with the state's Public Employment Relations Board. The dispute was assigned to an Administrative Law Judge, who agreed with the union. It is a union, and not the individual employees, that has the exclusive right to bargain wages, hours and terms and conditions of employment for all members of the bargaining unit. The judge ordered the sheriff to revoke the premium pay.

     Putnam Co. PBA and Co. of Putnam Sheriff, #U-23036, 35 NYPER (LRP) P4561, 2002 NYPER (LRP) Lexis 159 (NY PERB-ALJ 2002).

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California appeals court rejects a mental disability retirement for a police officer that suffered allegedly retaliatory discipline and threats from fellow officers after he reported the use of excessive force by his coworkers. A rational fear for his own safety if he returns to work in the same agency is not enough; the claimant must show a likelihood of retaliation if he works in police agencies elsewhere in the state.

     A California police officer encountered personality conflict after he reported what he believed to be excessive use of force on detainees by fellow officers. An I-A investigation turned up no misconduct on the part of the other officers, but disciplinary charges were then brought against him for unbecoming conduct, unsatisfactory performance, misuse of sick time, improper handling of evidence and unauthorized erasure of tape recorded statements made by witnesses, victims and suspects.

     The officer was fired, but later was reinstated (with a five-day disciplinary suspension) by an arbitrator. Although only 32 years old, he filed for a permanent disability retirement, citing emotional distress. He began seeing several mental health professionals. He also filed a civil "whistleblower" suit seeking damages for wrongful termination.

     The civil jury awarded him $223,000, but also concluded that he could have worked at comparable employment, and reduced the award by $63,000. The jury also awarded $180,000 in compensation for emotional stress.

     After the arbitrator's decision was announced he received two threatening telephone calls and numerous telephone call hang-ups. He believed the calls were placed by fellow police officers. In one call he was told to always wear his vest -- an allusion to being shot at. The other was, "Welcome back, you're f-ing dead."

     An administrative hearing on his disability retirement was held. The administrative law judge recommended found no "mental illness." Rather, his "unhappiness and feelings of frustration represent the normal emotional responses to anyone placed in an unpleasant situation." The city adopted the administrative law judge's proposed decision and the ex-officer sought judicial review.

     According to the plaintiff's psychologist, he suffered from depression but was quite functional in daily living. A psychiatrist for the city's insurance carrier agreed with the plaintiff's psychologist that he suffered from "major depression, single episode, severe." The city's psychiatrist was less sympathetic and said he was "a very angry person," although his concerns about not receiving the support of his fellow officers (and thereby having his safety jeopardized) to be "realistic."

     The trial judge concluded that the plaintiff was "not emotionally and mentally able to work as a police officer due to fear for his personal safety and retaliation he has already experienced ... and is likely to continue ... and the likelihood that he could not count on fellow officers for backup in time of need."

     The trial court entered a judgment requiring the city to find the plaintiff, then age 38, "permanently incapacitated" and to award him future and retroactive disability retirement benefits. A three-judge appeals court has reversed, saying:

"Peace officers and firefighters sometimes put in for a disability retirement based on "mental incapacity" where the alleged incapacity derives fundamentally from the fact that they aren't getting along with their colleagues. The 'incapacity' is manifested in some fear about the way fellow officers will behave toward them in the future. ...

"Fear arising out of a fear of retaliation by individuals in one department does not translate into an incapacity that keeps an officer from working elsewhere. The relevant statute ... uses the phrase "state service," not "city" or "department" service. It is thus directed at the inability to perform one's usual duties, i.e., one's usual services, not to work smoothly in a given location with specific people.

"We reject as a matter of law the demeaning but unspoken stereotypical assumption on which these 'fear of retaliation' cases are based, i.e., that because of a 'code of silence,' most peace officers and firefighters throughout the state are really bad guys who would not come to the aid of a colleague who was on the 'outs' with the rest of a specific department. ...

" ... there is no evidence in the record that officers in other departments pose any sort of danger to [the plaintiff], or even that he feared they would. Nothing except stereotyping indicates that the rank and file officers in any hypothetical police department which might hire [the plaintiff] would even be informed of his alleged 'snitching' on the gang unit, much less that those officers would invariably retaliate against him for something done a long time ago in a department far away."

     The appellate panel remanded the case, and directed the trial court to determine whether the plaintiff "is mentally incapacitated for state service, i.e., perform police services throughout the state, absent implicit considerations based on the theory that police officers in departments other than Anaheim will be assumed to want to retaliate against him for what happened in Anaheim."

     City of Anaheim v. Nolan, #G028272, 104 Cal.App.4th 1170, 128 Cal.Rptr.2d 714, 2002 Cal. App. Lexis 5235 (4th Dist. Cal. App. 2002).

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

     • Suggested reading: "Ensuring Officer Integrity and Accountability," by Daniel Schofield in the FBI Law Enforcement Bulletin, Aug. 1998, p. 28. [PDF]

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Sixth Circuit finds that police officers were not entitled to bring a damage suit against the chief of police, even if the I-A interrogation of the officers was partially criminal in nature, and Miranda rights were not observed.

     In the course of housekeeping efforts, two Ohio officers removed "an old couch and some dilapidated chairs" from a training room. The furniture was placed in a dumpster behind the building. The chief of police was outraged and said that the disposal of the furniture could be considered theft of city property.

     He ordered the officers to prepare detailed written statements concerning the station cleanup. The officers objected, and asked for a lawyer. The chief then said that the matter was not criminal, and ordered the officers to turn in their statements by the end of their work shift.

     The officers did so, producing statements that described the cleanup efforts generally but making no reference to the furniture. Because of what the chief viewed as a failure to comply with his order, he initiated disciplinary proceedings against the officers.

     After consulting counsel, the officers submitted revised statements with detailed accounts of the station house cleanup and the removal of the furniture.

     Although the chief recommended that the mayor suspend the officers for 30 days, no punishment of any kind was imposed. The chief supposedly also recommended the initiation of criminal proceedings, but the officers were never prosecuted.

     The officers filed a civil rights suit against the chief, alleging constitutional violations. The trial court dismissed the suit, and a three-judge appeals panel has affirmed. The panel said:

At no stage, as far as the record discloses, was either officer required to waive his constitutional privilege against self-incrimination. ...

Although there is no evidence here that Chief F__ required Officers L__ and G__ to waive their privilege against self-incrimination, the officers contend that a waiver of the privilege is implicit in any statement given by a public employee under threat of disciplinary action. The caselaw does not support this contention - and Garrity, to repeat, teaches that any such waiver would have been ineffective.

     The panel also noted that there is an important distinction between private citizens and public employees. "Plaintiffs who wear the uniforms of police officers can make no tenable claim that a Fifth Amendment violation occurred when the Police Dept. merely exercised its legitimate right, as an employer, to question them about matters narrowly relating to their job performance."

     Lingler v. Fechko, #01-3554, 312 F.3d 237, 2002 U.S. App. Lexis 25131, 2002 FED App. 0420P (6th Cir. 2002).

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     Research Note: Most courts have held that a violation of Miranda activates the exclusionary rule, but does not give rise to a damage claim. The exception is in the Ninth Circuit. Several cases stand for the proposition that a police officer is civilly liable for conducting an interrogation in violation of Miranda.

     In Cooper v. Dupnik the Ninth Circuit held that an exaction of incriminating statements from a member of the public in violation of Miranda was actionable under §1983 and the Fifth Amendment despite the fact that the statements were never against the declarant in a criminal case.

     In Martinez v. City of Oxnard, the most recent case, a police officer was successfully sued for persistently interviewing a gravely wounded man in a hospital emergency room, while doctors repeatedly asked the officer to leave the patient alone. The Supreme Court will give a final opinion in Martinez before the end of June, 2003.

     For further illumination, see:

     • Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. en banc), cert. den. 506 U.S. 953 (1992);

     • California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 1999).

     •  Martinez v. City of Oxnard, #00-56520, 270 F.3d 852, 2001 U.S. App. Lexis 23401; cert. gtd. Chavez v. Martinez, #01-1444, 70 U.S.L.W. 3741; argued 4 Dec. 2002, decision pending.

     • Also see, "Intentional Violations of Miranda: A Strategy for Liability," by Kimberly A. Crawford, J.D., in the Aug. 1997 FBI Law Enforcement Bulletin.

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Federal appeals court upholds the termination of two civilian Navy Dept. workers who refused to be inoculated against anthrax.

     The Navy discharged two civilian workers who refused anthrax vaccinations (Bacillus anthracis). One claimed that he suffered from asbestosis and had been exposed to Agent Orange during his military service in Vietnam. The other stated that he previously had received the first two doses of the series required for anthrax vaccination, and that each time he had suffered headaches and body pains.

     On appeal, they challenged their removals on the grounds that the order to receive the anthrax vaccine was unauthorized and that the penalty of removal was excessive. Both had more than ten years of civilian service, plus prior military experience.

     A three-judge appeals panel said:

"The military has broad authority and discretion in dealing with its personnel, both military and civilian, including the protection of their health. The Navy did not exceed its authority or otherwise abuse its discretion by ordering [the appellants] to undergo anthrax vaccination.

"The penalty of removal was neither unauthorized nor excessive. The misconduct for which [the appellants] were removed was 'failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.' That misconduct constituted insubordination, which this court defines as a 'willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.'

"Insubordination is a serious offense that disrupts the work place and interferes with and threatens the ability of the work force to perform its duties. Its adverse impact is particularly serious in the military, where prompt obedience to lawful orders is essential, especially aboard a ship. In this case, there was a clear and unjustified refusal to obey the lawful order of a superior. There can be no question that the removal of [the appellants] was 'for such cause as will promote the efficiency of the service.'"

     The panel concluded that reliability that employees would carry out their duties fully justified the penalty of dismissal. Mazares v. Dept. of the Navy, #01-3337, 302 F.3d 1382, 2002 U.S. App. Lexis 18684 (Fed. Cir. 2002).

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Federal appeals court holds that a disciplinary punishment schedule, published in a manual, is not binding on an agency unless management has intended it to be binding.

     A U.S. Park Police Captain found a photocopy of a parody written by "The Phantom." Besides containing sexually explicit passages, it insinuated that several easily identifiable officers were lesbians and that an officer married to another member of the Park Police had an adulterous liaison with a third member of the Park Police. An I-A investigation was started. A lieutenant was subsequently identified as the writer.

     The lieutenant was charged with Conduct Unbecoming an Officer, and was demoted to sergeant. He appealed on the ground of excessive punishment.

     A disciplinary Table provided that the penalty for a first such offense may range from a written reprimand to a five-day suspension, but a Note counseled that "if the employee occupies a supervisory or managerial position, serious consideration should be given -- even for the first offense -- to removal of supervisory responsibilities or reassignment from the supervisory position (which may involve a demotion)."

     An administrative judge upheld the penalty because "an agency's table of penalties is only one factor to be considered in assessing the reasonableness of a penalty, and an agency may deviate from the guidelines where a more severe penalty is reasonable," citing Chatman v. Dep't of Army, 73 M.S.P.R. 582, 1997 MSPB Lexis 274 (1997).

     The Merit System Protection Board then confirmed the penalty. After a settlement attempt fell through, the case moved up to the U.S. Court of Appeals. A three-judge panel of the Federal Circuit has affirmed.

"The issue is not whether the agency statement is binding on the public, but whether it is binding on the agency itself. ... The general consensus is that an agency statement, not issued as a formal regulation, binds the agency only if the agency intended the statement to be binding. ...

"In this case, the document is called a 'Guide.' For each offense, a range of penalties is given, sometimes without indication of how the penalty should be determined. It contains no mandatory language. ...

"The manual explains that the Table only provides a general framework within which supervisors may exercise sound judgment in dealing with particular circumstances, although ordinarily the penalty selected will fall within the range provided by the guide. The guide does not replace supervisory judgment and, with the exception of misuse of a Government vehicle, does not require specific penalties. ...

"In addition, the Table is far from comprehensive. It does not cover the distribution of sexually explicit material such as "The Quest." It also does not prescribe penalties for the violation of the general orders that Park Police officers must follow, several of which [the appellant] violated in this case. ... The Park Police were not bound by the Table."

     The panel noted that management did not treat the Table as binding. In his decision letter, the Chief explained that he had chosen demotion over lesser punishments because the lieutenant's behavior was "shocking and reflects little respect on [his] part for others, particularly minorities and women."

     More importantly, said the panel, "there is no constitutional requirement that an agency provide advance notice of the possible range of penalties. Due process does not require that an agency post the specific penalties to which an employee could be subject for any particular violation."

     Farrell v. Dept. of Interior, 02-3108, 314 F.3d 584, 2002 U.S. App. Lexis 26350 (Fed. Cir. 2002).

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

     Editor's Note: In agencies that engage in collective bargaining, the strict application (or non application) of a disciplinary schedule can be specifically provided for in the agreement.

     Where disciplinary action is subject to arbitration, an arbitrator will look at the work history of the parties. Absent aggravating factors, if management has consistently looked to and applied a disciplinary table or matrix, it will be deemed to be a part of the bargaining agreement, based on a custom and practice of the parties. Licking Co. and FOP, FMCS #95/13588, 105 LA (BNA) 824 (Paolucci, 1995); Amalgamated Transit Union v. SEMTA, 473 N.W.2d 249 (Mich. 1991).

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Five-judge appeals panel in New York sustains the termination of a NYPD officer for striking an arrestee with handcuffs. The accused officer had refused a pretrial offer of a 20-day vacation forfeiture penalty.

     At an evidentiary hearing, it was determined the officer had "repeatedly and unjustifiably struck a female civilian in her fifties on the head with his handcuffs, in the course of effecting her dubious arrest for disorderly conduct."

     In addition to eyewitness testimony, hospital records showed that the woman suffered a 1-2 centimeter cut on the front of her scalp that required stitches.

     Before the trial, the officer refused to take a 20-day vacation forfeiture. The appellate court noted the significant disparity, but the courts lack "discretionary authority" to change the penalty, absent special circumstances.

     Serras v. Kerik, #1650, 750 N.Y.S.2d 23, 2002 N.Y. App. Div. Lexis 10804 (A.D. 1st Dept. 2002).

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Federal court dismisses a civil rights suit filed by an ex-police officer who alleged that she was subjected to I-A investigations, criminal charges, and a psychological fitness test because of her gender. She failed to adduce any evidence of bias or bad motives.

     A probationary police officer was the subject of two criminal and four disciplinary investigations during her short law enforcement career. Among other things, she allegedly:

• Spoke to a fellow officer in an unprofessional and inappropriate manner;
• Engaged in conduct reflecting a propensity for violence, lack of self-control and prudent judgment;
• Made a derogatory comment about a superior officer; and
• Was offensive and rude to a secretary in the prosecutor's office.

     The chief of police referred her to a psychologist for a fitness for duty examination. The psychologist concluded in her report that the officer was only "conditionally fit for duty as a police officer."

     A proposed agreement was drafted by the Town, which set forth recommendations by the psychologist as conditions of the officer's continued employment, but she refused to sign it. The chief then terminated her probationary employment.

     The ex-officer sued, claiming that the city and various defendants subjected her to false arrest, unlawful seizure, and malicious prosecution; violated her First Amendment rights, her rights to due process, equal protection, and privacy; and that the defendants intentionally and negligently inflicted emotional distress.

     The court found probable cause for the criminal charges, and noted that the plaintiff failed to bring any evidence indicating that those who were involved in arrest warrant process "knew or should have known any other information which would indicate that the warrant lacked probable cause."

     The judge then noted a lack of any evidence that the I-A investigations, or the manner in which they were conducted, or the sanctions resulting from the investigations were arbitrary, conscience-shocking, or outrageous.

     The court also concluded that the plaintiff did not present any evidence that the chief's referral to a psychologist for a fitness for duty examination was either "arbitrary, conscience-shocking, or outrageous."

     In dismissing the claims, "the Court concludes that the undisputed facts of all of these events--the investigations, arrest, psychological exam, and termination - even when considered in the aggregate, and even when those facts and the disputed ones are considered in a light most favorable to [the plaintiff], could not rise to the level of a substantive due process violation."

     As for her allegation of gender bias she "presented evidence that (1) the defendants in the case are all male; (2) her husband was not arrested in connection with [two] domestic disputes; and (3) she believed that she was treated differently than a male officer would have been with regard to her arrest, internal affairs investigations, criminal investigations, and her termination."

     The court found that her statement was conclusory and several male officers also were investigated and disciplined for their actions at one of the incidents. Zandhri v. Dortenzio, #3:99CV1776, 228 F.Supp.2d 167, 2002 U.S. Dist. Lexis 21048 (D.Conn. 2002).

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Officer loses a retaliation suit against the town. Disciplinary action was fairly imposed for unrelated misconduct.

     A police canine officer sued his town under the FLSA for unpaid time while caring for the dog. Subsequently a jury awarded him $684 in damages plus $36,936 in costs and attorneys' fees (54 times the damages).

     After the verdict, police overtime was reduced to lower expenditures, coworkers gave him a cold shoulder, and his superiors imposed two reprimands for inefficiencies.

     Later, he and another officer were investigated for mishandling found property. The coworker passed a polygraph exam, but the plaintiff failed. He was fired for "untruthful statements and conduct," but the penalty was reduced a 60-day suspension by the Town Council.

     He sued in federal court, claiming that the discipline was in retaliation for his bringing the FLSA claim. A trial judge dismissed the action for lack of evidence, and the plaintiff appealed.

     A three-judge appellate panel affirmed, noting that a coincidence of timing does not prove retaliation. They said:

"While his dismissal followed closely upon the settlement of the final FLSA claim, that fact, standing alone, is not enough to trigger an inference of causation. ... More importantly ... the defendants acted only after an evidentiary hearing [before] an independent decisionmaker."

     The plaintiff failed to discredit this process. Kearney v. Town of Wareham, #02-1264, 2002 U.S. App. Lexis 25133, 8 WH Cases2d (BNA) 513 (1st Cir. 2002).

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Federal court overturns a $100,000 jury verdict for a NYPD officer who was unable to prove the Police Commissioner knew of the alleged retaliation or tolerated a custom of retaliation against officers who are critical of police brutality.

     An NYPD officer was fired for violating a state law prohibiting officers from serving as candidates for political office. The officer's name had been placed on the liberal Party ballot without his permission.

     He sued the city, claiming that management had a policy of retaliating against its members who speak on public issues. He alleged he had criticized the Department for police brutality. The jury agreed, and found that the management had retaliated against him and awarded $100,000 in damages.

     On a motion of the city, the judge set aside the verdict. First, the evidence did not support the finding that the police department had an official policy or custom of retaliating against officers for exercising their Constitutional rights.

     Second, there was no proof that the Police Commissioner ratified his subordinates' decision to retaliate against the police officer or that a custom of retaliation existed. The judge wrote:

"... it is worth remembering, if not emphasizing, that the New York City Police Commissioner is head of the largest police department in the United States. Davis and the police officers that decided to retaliate against him were only a handful of over 35,000 uniformed officers employed by the New York City Police Department. On any given day, one of these employees may take action against a fellow officer or citizen for illegitimate reasons and there are a number of laws that prohibit such behavior.

"But liability under section 1983 -- the law under which Davis brought this action -- is not triggered simply because an employee violated the Constitution. Rather, the plaintiff must also show that the Police Department was the cause of this violation."

     This evidence did not support the jury's verdict that the employer refused to reinstate the plaintiff "for the simple reason that two [prior] incidents of unconstitutional conduct by low-level employees in a city agency with over 35,000 employees can never provide a reasonable basis for finding a widespread or well-settled custom." Davis v. City of N.Y., #00 Civ. 4309, 228 F.Supp.2d 327, 2002 U.S. Dist. Lexis 17701 (S.D.N.Y. 2002).

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A divided Louisiana Supreme Court allows polygraph evidence in police disciplinary hearings. U. S. Supreme Court declines review.

     A Louisiana police officer was under investigation for leaking information that may have resulted in the murder of an informant. The chief ordered the officer to take a polygraph exam.

     The examiner reported that the officer was untruthful. The chief then fired the officer, who requested a post-termination hearing. The Municipal Fire and Police Civil Service Board heard evidence from the polygraph examiner that the officer had been untruthful when asked if he had disclosed the identity of the deceased confidential informant to a drug dealer.

     The ex-officer sought judicial review. The trial court confirmed the termination, but an appeals court overturned the result, finding that the polygraph results were unreliable, irrelevant and inadmissible.

     The Louisiana Supreme Court reinstated the termination, 6-to-1. In Louisiana, polygraph results are inadmissible in criminal trials, but an administrative hearing is different for four reasons:

1. They may encompass both legislative and adjudicative functions.
2. Juries are not involved and the factfinders usually have "special expertise" in the subject matter of the inquiry.
3. The decision-maker also exercises investigative functions.
4. Non-lawyers frequently are involved in the process.

     State law regulates polygraph examinations, and the courts in Louisiana have long upheld the right of management to order a public employee to take an exam.

     Additionally, the polygrapher testified he was licensed since 1985, had conducted 500-600 polygraphs, was board certified, and "was cross-examined vigorously on the possible inaccuracies of the polygraph." No test irregularities were found. A four-justice majority said:

"... it would be ludicrous if the appointing authority ... could fire a police officer based on the results of a polygraph test ... but ... could not present the evidence to justify his decision ...

"Therefore, we find that the results of a properly administered polygraph are admissible in an administrative hearing ... to review whether the appointing authority had good or lawful cause for taking disciplinary action against a police officer. * * *

"In administrative hearings involving civil servant disciplinary actions, evidence is admissible if it is competent and has a reasonable relevance to the issues before the board. This determination must be made on a case-by-case basis, and will not be overturned unless manifestly erroneous. Although not 100% reliable, the results of a properly administered polygraph test are competent evidence and are of the type upon which reasonable persons would rely."

     Two justices concurred in the result. One added in a separate opinion:

"It logically follows that the appointing authority can consider termination based on the officer's failing the polygraph test. It would be incongruous to then rule that one could not introduce evidence used in helping make the determination to terminate the officer's employment.

"Nevertheless, the determination of who is telling the truth is a sacred determination. The polygraph test is merely a tool to assist the fact finder. Fact finders must be wary not to abdicate the responsibility for determining the truth to a machine or to the expert who operates the machine."

     The chief justice dissented, noting that the majority's opinion was based on the "fallacy that an employer may simply terminate a civil service employee who refuses to submit to a polygraph examination." He added that the reasons for disallowing polygraph examination or stress test results in criminal cases also was relevant to public employee hearings.

     The officer then sought review by the Supreme Court of the United States. The justices declined to issue a Writ of Certiorari. Evans v. DeRidder Mun. Fire and Police Civ. Serv. Bd., #01-C-2466, 815 So.2d 61, 2002 La. Lexis 962; cert. den., 2003 U.S. Lexis 636 (2003).

     • Click the following links to read the Louisiana opinion and the "Questions Presented" in the U.S. Supreme Court petition; both documents are on the AELE website.

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Arbitrator reinstates all fulltime dispatchers, where the entire unit was furloughed for fiscal reasons, but only two police officers and two firefighters were laid off. Because the officers assigned to replace the dispatchers earned more, there was no financial justification for singling out the dispatchers for furlough.

     Ohio cities are prohibited by state law from operating in a deficit. One of them imposed a 20% budget reduction in all departments.

     Layoffs included two police officers, two firefighters, two civilian employees, and the three fulltime dispatchers -- plus three part-time dispatchers. Police officers have been performing all dispatcher duties since the layoffs. The dispatchers' union grieved.

     The contract provided that "In the event of a reduction in force from the police department due to ... lack of funds, patrol officers may be assigned to dispatcher duties no more than four (4) hours per shift except in case of an emergency."

     At the arbitration hearing, the city claimed the fiscal crisis was an emergency. It also noted it rotated police officers between dispatch and patrol duties, to comply with the four-hour limit.

     The arbitrator noted:

"A lack of funds was the very reason for the reduction in force ... [and] any reasonable interpretation of 'lack of funds' must include a fiscal crisis of the type in the within proceedings. ...

"The City's contention that [the contract] permits patrol officers to sit [at a] desk as long as no one officer does so for over four hours, is also without merit. ...

"Job security is an inherent element of the labor contract, a part of its very being. ... The transfer of work customarily performed by employees in the bargaining unit to others outside the unit must therefore be regarded as an attack on the job security of the employees whom the agreement covers and therefore on one of the contract's basic purposes. ...

"Moreover, while layoffs were necessitated by the City's fiscal crisis, the decimation of the Dispatcher Bargaining Unit, under the pretext of saving money, is questionable. Patrol Officers, by and large, are paid more than Dispatchers. Thus, except in the case of the most junior Patrol Officers, it costs the City more to have Patrol Officers sit [at a] desk than to have the Dispatchers perform dispatcher duties."

     He ruled that all Dispatchers in the bargaining unit must be returned to work and "made whole for all losses sustained as the result of the City's contractual violation." City of Fostoria, Ohio and Ohio PBA Dispatchers Unit, 117 LA (BNA) 1093, AAA Case #53-L-390-001712 (Lalka, 2002).

     Editor's note: The part-time dispatchers were not affected, because they were not part of the bargaining unit. Ohio Rev. Code §4117.01 (parts N-P) defines, as eligible members of a bargaining unit, "a full-time regular police officer ... a full-time deputy sheriff ... a township constable ... or a ... full-time regular fire fighter ..." Part-time support personnel also were excluded from the bargaining unit.

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Arbitrator determines that while a woman city employee suffered severe mental anguish after a male firefighter displayed a porn pic that resembled her, she failed to seek paid injury leave within the specified time limit, and was not so mentally distraught as to excuse the delay.

     A city firefighter showed a picture of a woman in a sexually explicit pose to male coworkers, which he downloaded from the Internet. The picture resembled the grievant.

     When the grievant learned about the picture and viewed it, she could not face her colleagues. She was so upset that she was placed on sick leave status and was treated by a psychologist, a psychiatrist, and her family physician.

     She later sought duty-related injury leave benefits. The claim was denied because she failed to file her claim within 15 days. The union sought exemption from the time requirement because of her depressed state of mind and the lack of prejudice to the city. The arbitrator disagreed, saying:

"... the lingering affects ... were not so serious that it impaired her ability to think clearly and act rationally. [She] had the mental capacity to file her Injury Investigation Report."

     The facts did not support a finding that she was "so distraught and depressed that she could not file a grievance within the negotiated time limit."

     The arbitrator concluded that the union failed to prove that she was mentally incapable of filing a grievance in a timely manner and that the time limit should be excused. City of Dayton and IAFF L-136, 117 LA (BNA) 1142, AAA Case #52-390-00021-00 (Imundo, 2002).

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Access to Courts & ADR

     A police officer's civil rights suit against the city and others was properly dismissed because of his attorney's delays and a lack of prosecution of his claims. Gripe v. City of Enid, #01-6430, 312 F.3d 1184, 2002 U.S. App. Lexis 24590 (10th Cir. 2002).

Age Discrimination - Entry

     Federal appeals court disallows a civil rights suit filed by a firefighter applicant who was rejected because he was over age 36; he lacked a property interest in a prospective position as a city firefighter. Moore v. Muncie Police and Fire Cmsn., #01-3175, 312 F.3d 322, 2002 U.S. App. Lexis 24598 (7th Cir. 2002). [PDF]

Age Discrimination - Termination / Mandatory Retirement

     The Eleventh Amendment does not bar state troopers from seeking injunctive relief against a state government for age discrimination under the ADEA. State Police for Automatic Retirement Assn. v. DiFava, #01-158, 2003 U.S. App. Lexis 653, 90 FEP Cases (BNA) 1363 (1st Cir. 2003).

Arbitration Procedures

     New Jersey Supreme Court holds that when a party fails to attend arbitration and a default award is entered, the absent party still has a right to demand a hearing on the merits if the arbitrator fails to notify him or her of the award. America's Pride Construction v. Farry, A-87, 811 A.2d 906, 2002 N.J. Lexis 1787 (N.J. 2002).

     Federal appeals court holds that an arbitrator exceeded his authority by reinstating an employee who was fired for insubordination. The bargaining agreement gave management the right to discharge, and the arbitrator had no discretion to fashion remedy different from the parties' agreed-upon discipline. Poland Spring Corp. v. UFCW, AFL-CIO L-1445, #02-1064, 314 F.3d 29, 171 LRRM (BNA) 2641, 2002 U.S. App. Lexis 26553 (1st Cir. 2002).

Criminal Liability

     A Nevada criminal law, making it an offense to knowingly make a false allegation of misconduct against a peace officer, is declared unconstitutional by a federal court. Eakins v. State of Nevada, 219 F.Supp.2d 1113, 2002 U.S. Dist. Lexis 16405 (D. Nev. 2002).

     A California Penal Code section that punishes knowingly making a false complaint against a police officer does not violate the First Amendment, and is constitutional even though false complaints against other public officials are not crimes. People v. Stanistreet, #S102722, 29 Cal.4th 497, 58 P.3d 465, 127 Cal.Rptr.2d 633, 2002 Cal. Lexis 8287 (Cal. 2002). [PDF]

Handicap Laws/ Abilities Discrimination - In General

     Plaintiffs are not limited by the $300,000 federal cap on damages available under the ADA if a parallel state law lacks a damage cap. Gagliardo v. Connaught Laboratories, #01-4045, 311 F.3d 565, 2002 U.S. App. Lexis 23953 (3d Cir. 2002). [PDF]

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Employee with panic disorder and agoraphobia, causing her to fear leaving home and to avoid traveling, is a qualified individual with a disability under the ADA, even though she would not suffer symptoms if she were medicated. Kuechle v. Life's Companion, #C9-02-233, 653 N.W.2d 214, 2002 Minn. App. Lexis 1273.

Homosexual & Transgendered Employee Rights

     New York has become the 13th state to prohibit anti-gay bias. The Sexual Orientation Non-Discrimination Act took effect in Jan. 2003. A-01971 and S-720, amending Executive Law §§291-6, Civ. Rts. Law §40, and Educ. Law §313 (Eff. 1/17/2003).

Occupational Safety & Disease

     California enacts a law imposing a minimum penalty of $5,000 on employers who fail to report a serious injury or illness of an employee to Cal/OSHA within eight hours of its occurrence. An employer, officer, management official, or supervisor who knowingly fails to report a death is guilty of a misdemeanor and faces a fine of up to $15,000 (corporations up to $150,000). Health and Safety Code §102346.

Privacy Rights

     California appellate court upholds a police association's suit for injunctive relief against a city for not keeping officer records confidential at disciplinary hearings, under Penal Code §832.7. San Diego Police Officers' Assn. v. City of San Diego Civil Serv. Cmsn., #D038685, 104 Cal.App.4th 275, 128 Cal.Rptr.2d 248, 2002 Cal. App. Lexis 5120 (Cal. App. 4th Dist. 2002). [PDF]

Retirement Rights and Benefits

     A Norfolk naval base police officer was not a law enforcement officer under 5 U.S. Code §8336(c)(1), and was not entitled to enhanced retirement benefits. Koenig v. Dept. of the Navy, #02-3126, 315 F.3d 1378, 2003 U.S. App. Lexis 629 (Fed Cir. 2003). Also see Watson v. Dept. of the Navy, 262 F.3d 1292 (Fed. Cir. 2001).

Sex Discrimination - In General

     Woman deputy dog warden, who won $300,000 in a federal sex discrimination suit after she was not promoted to warden, was not entitled to recover additional damages from the county commissioners, in their individual capacities, in a parallel suit brought in state court, under state law. Kirkhart v. Keiper, #2001-P-0069, 2002 Ohio 6472, 2002 Ohio App. Lexis 6255 (Ohio App. 2002).

Sex Discrimination - Equal Pay & Opportunity Claims

     A reorganization is not an "adverse employment action" for the purposes of a Title VII unlawful retaliation claim. Gu v. Boston Police, #01-2354, 312 F.3d 6, 2002 U.S. App. Lexis 24316 (1st Cir. 2002).

Sexual Harassment - In General

     Supreme Court declines to review a decision that an unpaid volunteer -- for a nonprofit organization that provided her workspace and clerical support -- was not an "employee" under Title VII, and her claims of sexual harassment are not actionable. York v. Assn. of Bar of City of N.Y., #02-667, review denied at 2002 U.S. Lexis 9280, 71 U.S.L.W. 3415; ruling below, #01-7908, at 286 F.3d 122, 2002 U.S. App. Lexis 5947, 88 FEP Cases (BNA) 833 (2d Cir. 2002).

Uniforms, Clothing and Equipment

     A transit authority's dress code requiring all employees to wear pants as part of a uniform is not an unconstitutional infringement when applied to a woman employee who wants to wear a skirt. Zalewska v. County of Sullivan, #02-7099, 2003 U.S. App. Lexis 393, 90 FEP Cases (BNA) 1193 (2nd Cir. 2003).

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     AELE's list of recently-noted employment law resources.

     Appointments: For the first time, all five members (and the General Counsel) of the National Labor Relations Board have been appointed by President George W. Bush, including three Republican and two Democratic members.

     Article: "Workplace Stress Claims Resulting From Sept.11th," 18 (2) The Labor Lawyer (ABA) 137-164 (Fall 2002). abasvcctr@abanet.org

     Book: 2003 Federal Employees Almanac. Pay, benefits, leaves, retirement, legal rulings, employment policies and procedures, etc.

     Book: Federal Job Dispute Procedures: An employee's guide to complaints, appeals, and grievances.

     Published article: "Violence at work," by Jason R. Sakis and Daniel B. Kennedy, 38 (12) Trial (ATLA) 32 (Dec. 2002). Info. at www.atla.org

     Website: New federal website, for individuals to find and comment on proposed rules being considered by federal agencies: http://www.regulations.gov/

     Website: Dept. of Homeland Security employees' information page. (click on employees)

     Website: Military income tax preparation guide.

     Link: Selected resources in past issues.

CROSS REFERENCES