Former Kansas City (MO) police officer wins $2.7 after being pressured to retire.

     Although only 46 years old, the officer claimed he was involuntarily transferred, told that he was burned out and "older than dirt." After multiple confrontations with superiors, a KCPD officer took a medical retirement and sued in state court for age discrimination.

     The city removed the lawsuit to federal court, but it was sent back to state court in 2002. Hogan v. Eckhold, #4:01-cv-00322 (W.D. Mo.2001; dismissed w/o prejudice 2002).

     After a mistrial in early 2005, another jury has ruled 10-2 for the plaintiff, awarding him $700,000 in actual damages and $2 million in punitive damages. Hogan v. Wasson-Hunt, #01CV206620, 44 (2139) G.E.R.R. (BNA) 39 (16 Jud. Cir. Ct. Mo. 2005).

     Note: no state court documents are available.

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Illinois appellate court affirms a line-of-duty pension for an officer who had stressful confrontations with the police chief.

     A Chicago suburb appealed a ruling of its police pension board after it awarded duty-related retirement benefits to a detective who suffered panic attacks and had a series of stressful shouting sessions with the police chief. Supposedly, the police chief approached a crime victim and "offered her gifts in exchange for filing a sexual assault case" against the detective.

     In Illinois, courts have held that stress resulting from difficulties with one's boss or supervisor does not entitle an employee to a duty-related disability pension. They also have held that stress resulting "from the general trauma associated with being a police officer" is not a valid reason to award a duty-related disability pension. A duty-related medical pension is 30% higher than an ordinarily disability pension.

     In this case, the detective said that panic attacks began in 1996 when he was doing undercover narcotics work. He testified his interactions with the chief of police caused further attacks and caused his condition to worsen. He described incidents in which the chief told him to ignore missing evidence, advised him to discontinue his investigation of a rape case, and initiated an investigation of the detective for sexual harassment.

     The detective's testimony was supported by all three doctors who examined him. They found that his disability was duty-related. A three-judge appellate panel agreed, writing:

"Although civilians regularly suffer stress in their employment resulting from conflicts with their superiors ... ordinary citizens do not engage in undercover narcotics transactions, are not responsible for the preservation of evidence such as drugs and weapons, and do not investigate rape charges."

     They said the detective "faced risks not ordinarily encountered by civilians in the performance of his duties." Moreover, appellate court justices may not substitute their judgment for that of a pension board.

     They noted that there have been no instances in which a board's decision to award an officer a duty-related disability pension has been overturned on appeal. Village of Stickney v. Bd. of Police Pension Fund of Stickney, #1-05-1238, 2005 Ill. App. Lexis 1268 (1st App. Dist. 2005).

     • Click here to view the opinion on the Internet.

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Colorado Supreme Court finds that a Garrity Warning used by a sheriff's office was "ambiguous" and possibly deficient because it advised an employee that a failure to cooperate in an internal investigation "could" result in disciplinary action -- rather than would result in her termination.

     In Colorado, a private attorney represented a jail nurse who was suspended and charged with felony counts of forgery, tampering with evidence, and official misconduct. He also represented her during an internal investigation conducted by the sheriff's office.

     The sheriff's I-A investigators provided the nurse and her lawyer with an advisement of rights, which stated in part:

     "I further wish to advise you that if you refuse to ... answer questions relating to the performance of your official duties or fitness for duty, you will be subject to administrative charges which could result in your dismissal from the Sheriff's Office." The advisement was accompanied by a letter stating that any "information obtained during the internal affairs interview cannot be used in the criminal investigation," citing Garrity v. New Jersey, 385 U.S. 493 (1967) and People v. Sapp, 934 P.2d 1367 (Colo. 1997).

     The attorney advised the nurse not to participate in the I-A interview because he believed the sheriff's office lacked the authority to grant her use immunity. The prosecution eventually dismissed the felony charges and the nurse retained another attorney. Although she was reinstated, she forfeited thirty days of back pay for refusing to cooperate with the internal affairs investigation. She sued the first lawyer for malpractice.

     Dividing 6-to-1, the majority found the lawyer did not engage in malpractice because of the ambiguous nature of the Garrity warning. The letter said a refusal to cooperate "could result" in her dismissal -- as opposed to a promise that she would lose her job. The majority explained the issue was:

"... whether the sheriff's advisement in this case was sufficiently coercive to trigger [the employee's] privilege against self incrimination ... It is not clear that the sheriff's advisement in this case, which informed [her] that she could be fired, reaches the level of 'significant coercive action of the state' ... * * * [bolding added]

"The sheriff's advisement in this case is sufficiently ambiguous so that reasonable minds could differ ... The advisement states that [the employee] could be terminated for not cooperating with the internal investigation, not that she would definitely be terminated. Thus ... the advisement was either inadequate or adequate ..."

     The majority said it would "not decide at this time which interpretation is appropriate" and "leave that for another day." Meanwhile, Colorado public agencies will have to guess what to do.

     The dissenting justice thought it was of no importance whether the Garrity warning used the word "could" or "will." He wrote:

"I not only find this distinction unconvincing, but also completely devoid of support in the prior holdings of this or other jurisdictions, and in direct conflict with both the rationale of and specific advisement in Garrity itself."

     Hopp & Flesch, LLC v. Backstreet, #04SC697, 2005 Colo. Lexis 1044, 23 IER Cases (BNA) 1263 (2005).

     • Click here to view the opinion on the Internet.

     • Editor's Comment: The decision will cause confusion in Colorado. Moreover, union lawyers will try to cite the holding in appeals heard in other states. We recommend, at least in Colorado, that I-A investigators modify their Garrity warnings if they have similar language, substituting the word "will" for "could."

     • Research Note: The text of Garrity warnings varies considerably; here are several examples (with bolding added):

» Article: "Interviews and Interrogations of Public Employees: Beckwith, Garrity, Miranda and Weingarten Rights," under "Employee Disciplinary Interview - Advice of Rights," Law Enforcement Executive Forum, November, 2004, states:

"If you refuse to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to disciplinary charges which would result in your dismissal from the Police Department."

» Canton, Ohio, Police Dept., "Internal Investigations - Garrity Warning" reads:

"If you refuse to answer all my questions, this in itself is a violation of the rules and procedures of the department, and you will be subject to separate disciplinary action."

» Colorado Springs Police Dept. General Order Number 1625 states:

"... subject to Departmental charges which could result in ... dismissal from the Police Department.

» Dayton, Ohio, Police Dept., "Garrity Warning" reads:

"At this time, I am advising you that you must answer questions posed to you. If you refuse to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which could result in your dismissal from the Dayton Police Department."

» The Manual of the Los Angeles Police Dept., under "Disciplinary Procedures §820.07 Administrative Interrogation Admonitions," states:

"Your silence could be deemed as insubordination and lead to administrative discipline, which could result in your discharge or removal from office."

» Minneapolis Civilian Police Review Authority, Administrative Rules 3 and 8-D provide:

"The failure to answer such questions pertaining only to the scope of their duty may form the basis of an officer's dismissal or result in disciplinary proceedings against that officer."

» State of Vermont - Personnel Policy and Procedures Manual Number 17.0 reads:

"Your failure to cooperate with this investigation, and your refusal to answer questions which relate to your job, may cause you to be subjected to discipline, including possible dismissal, by the State of Vermont."

     • Also see: Statements Compelled from Law Enforcement Employees, by Michael E. Brooks, J.D., FBI Law Enforcement Bulletin, July 2002 and Compelled Interviews of Public Employees, by Kimberly A. Crawford, J.D., FBI Law Enforcement Bulletin, May 1993.

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Arbitrator concludes that management wrongfully discharged an off-duty firefighter that assaulted his girlfriend; his behavior did not harm the reputation of his office or render him unable to perform his duties.

     A county firefighter was involved in an altercation in public and assaulted his girlfriend. He pled no contest to the criminal charges and was ordered to attend alcohol and anger management courses. He grieved the termination which followed, claiming that there is no link between the conduct and his employment.

     The arbitrator agreed, writing that the grievant's conduct behavior "did not harm the reputation of the [County] did not render him unable to perform his duties and did not lead to the refusal, reluctance or inability of other employees..."

     Broward Co. Sheriffs Office and IAFF L-4321, 121 LA (BNA) 1185, FMCS #05/01966 (Wolfson, 2005).

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

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Arbitrator sustains the termination of a firefighter who had been drinking alcohol at home during a hurricane alert, and was unable to report for callback duty. A racial discrimination charge was rejected, because the grievant had been offered a prehearing penalty reduction, which he refused.

     In this Florida community, firefighters were warned that the "consumption of alcohol in any amount, during a hurricane warning may result in termination." The grievant had been drinking wine and was unable to report for duty.

     Coincidentally, another firefighter also was told to come to work, but he also admitted that he had consumed alcoholic beverages. Both were fired and filed grievances.

     After discussions between the union and each of the grievants, the city proposed a lesser sanction to resolve both grievances. The other firefighter accepted the proposal; the grievant declined and proceeded with his grievance to arbitration. He also claimed race discrimination was behind the termination. The arbitrator said that the city's hurricane preparedness policy was "a sound, well reasoned and highly critiqued policy."

     He rejected the discrimination claim. The other firefighter was guilty of the same misconduct and the City offered both employees the same opportunity for redemption. The grievant refused, and the other firefighter accepted the lesser penalty.

     The grievance was denied. City of Lauderhill and Metro Broward Prof. Firefighters, 121 LA (BNA) 1035, AAA Case #32-390-00887-04 (Duda, 2005).

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

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Arbitrator upholds the firing of an officer for repeatedly using disrespectful and intemperate language to a superior. To prove disparate punishment, it is not enough that others received a lesser penalty for insubordination, unless there is evidence of the "degree of fault, mitigating circumstances, length of service, and work record" of other employees.

     Alton, Illinois, hired a sheriff's deputy that had been fired after three years of service. The grievant deputy had problems getting along with his supervisors. During his time with Alton, he was "sometimes discourteous" to citizens and "argumentative, disrespectful and confrontational" with supervisors.

     In 2003 the grievant received a one-day suspension for ridiculing a superior officer. Later in the year he referred to a fellow officer as a "fucking moron." He was suspended for nine days.

     Then, in 2004 the grievant was fired after a confrontation with a superior that included the words "Fuck you." At the arbitration hearing the union claimed that termination was disparate punishment. The arbitrator wrote:

"The Grievant had already had two disciplines for insubordination ... [and] that the insubordinate behavior he displayed... was so glaring that no express notice need be given that discharge could be a consequence."

     The grievant was unable to manage his anger. Although the union cited instances where lesser discipline was imposed on others, it was unable to document why the penalty was less severe. The arbitrator wrote:

     "Variations in penalties are allowed if there is a reasonable basis for the variations, and factors to be considered include the nature of the offense, degree of fault, mitigating circumstances, length of service, and work record ... Some of the incidents which the Union attempted to use as instances of disparate treatment lacked any evidentiary support and were simply not established at all."

     City of Alton and PBPA #14, 121 LA (BNA) 1288, FMCS Case 05/53832 (Pratte, 2005).

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

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Can an employer legally fire a worker for lying in his job application and then violate the ADA by not giving him his job back? A divided federal appeals court affirms a jury award for a rejected reinstatement applicant that had been acquitted of attempted murder because of insanity.

     The plaintiff was fired when the employer learned that he had lied about his criminal history -- a conviction for battery on a police officer 13 years earlier.

     The plaintiff asked to be reinstated after getting the conviction expunged. But the employer did not rehire him because he was in a mental institution between 1982 and 1985. The institutionalization stemmed from a 1982 acquittal by reason of insanity for attempting to murder a quadriplegic.

     He sued under the ADA, claiming discrimination because of his prior mental illness.

     During the trial, the determinative issue before the jury was whether the employer refused to reinstate the plaintiff because it regarded him as having a mental illness that might result in future acts of violence or because of the violent acts he had previously committed. In affirming a verdict for the plaintiff, the majority wrote:

"[The jury] heard evidence that ... employees considered [the plaintiff] unemployable because he had spent time in a 'mental ward' and might 'go off" on a customer. ... The jury found that [the employer] regarded [the plaintiff] mental disorder as substantially limiting his ability to work in a broad range of jobs."

     One judge dissented, noting that the majority now requires an employer to reinstate a person it believes may pose a danger to others. Josephs v. Pacific Bell, #03-56412, 432 F.3d 1006, 2005 U.S. App. Lexis 28737, 17 AD Cases (BNA) 678 (9th Cir. 2005).

     • Click here to view the opinion on the Internet.

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Federal court finds that a Pennsylvania city's physical abilities test for police applicants had a disparate impact on women applicants and was not job-related or consistent with business necessity.

     A federal court in western Pennsylvania has concluded that running a 220-yard obstacle course and performing timed push-ups and sit-ups was not job-related. As a result of dissatisfaction with a prior test consisting of pull-ups, push-ups, a vertical leap, and a broad jump, the Erie, Pennsylvania, civil service commission asked the police dept. to develop a new test.

     The chief, who was then a lieutenant, designed the current test. He did not consult any experts in testing or physical requirements. The test consisted of a 220-yard run, a climb over a 6 ft. wall, a climb through a window three feet above the ground, a crawl under an 8 ft. platform that was 2 ft. above the ground, and a climb over a 4 ft. high wall. He also added what was later changed to 13 push-ups and 13 sit-ups. The intent was to test an applicants' ability to maintain a foot pursuit and exert the physical strength to restrain a suspect.

     In 2002, the passing rate was 30.4% for women, and 71.0% for men. At the time the Justice Dept. sued the city, Erie had 193 male police officers and 9 female police officers (4.4%). The percentage of women officers in Philadelphia, Pittsburgh, and Harrisburg ranges from 20 percent to 27 percent.

     The court noted that Title VII allows an agility test that has a disparate impact on women "only if the test is job related for the position in question and consistent with business necessity."

     The city failed to prove that the physical abilities test was job-related when considered as a single test or if viewed as separate components. United States v. Erie, Penna., #04-4, 352 F. Supp. 2d 1105, 2005 U.S. Dist. Lexis 33397 (W.D. Pa. 2005).

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

     Editor's Note: Erie has since discontinued its use of the test challenged by the DoJ and will require that applicants to already be certified as law enforcement officers by the state of Pennsylvania. To enter the police academy, an individual must take the physical agility test mandated by Pennsylvania's Municipal Police Officer Education and Training Commission and perform each of the components of the test at the 30th percentile of the individual's gender and age group.

     To complete academy training and certification, an individual must take the same test and perform each component at the 50th percentile of the individual's gender and age group. Pennsylvania Code Title 37 §203.11(a)(8) provides that the agility portion consists of four parts: a 1.5 mile run, a 300 meter run, one repetition bench press and one minute sit ups.

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Federal court strikes down a mandatory wellness program for firefighters that included cholesterol testing. Although the program was for the benefit of city workers, it violated their rights of privacy.

     FEMA created an Assistance to Firefighters' Grant Program to provide funding for the purpose of protecting the health and safety of the public and firefighting personnel against fire and fire-related hazards. The City of Taylor, Mich., Fire Dept. created a wellness program for its employees, which required a mandatory blood draw.

     The blood draws were used to obtain a "Lipid Profile test" to find out the Plaintiffs' cholesterol, triglycerides, HDL cholesterol, VLDL cholesterol, and LDL cholesterol.

     The firefighters union sued, claiming that the blood tests were unconstitutional A federal judge agreed, writing:

"The Court finds that the mandatory blood draw implicated Plaintiffs' rights under the Fourth Amendment.. ... [and] ... that a collection of blood samples constitutes a search under the Fourth Amendment.

"The Supreme Court in Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989) provided that the act of drawing blood itself, even if the blood is not later tested for the presence of illegal drugs, is a search under the Fourth Amendment. http://laws.findlaw.com/us/489/602.html

"Generally, a search or seizure under the Fourth Amendment must be based upon reasonable suspicion of wrongdoing in order to be reasonable, and thus constitutional."

     The Court found that the blood draws were not constitutional under National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) and Chandler v. Miller, 520 U.S. 305, 313 (1997).

     The judge also wrote that "despite the fact that they were intended to benefit Plaintiffs" it violates their personal privacy rights protected by the Fourth Amendment. He added:

      "A cholesterol reading, while an important health barometer, cannot accurately determine the overall physical fitness of an employee as it relates to how that employee is able to respond in an emergency situation.

     "Further, any risk from high cholesterol is likely to take years to manifest. The Court finds that this is not a situation involving a high risk of harm to the public such as an intoxicated employee with a firearm or a drug impaired train conductor."

     Anderson v. City of Taylor, #2:04-cv-74345 (Doc.# 20), 2005 WL 1984438 (E.D. Mich. 2005).

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

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Ohio Supreme Court upholds a program to add hiring preference points for firefighter candidates that successfully complete an apprentice program designed to increase diversity.

     The Dayton, Ohio, city charter requires a competitive exam that measures merit, fitness, efficiency, character, and industry. It also allows the civil service board to issue rules and regulations, he said. A recent amendment allows preference points for completion of the "Fire Apprentice Program" for city residents aged of 18-31 who pass a medical exam and demonstrate the physical ability to perform as a firefighter.

     The program was designed to increase minority and female representation in the fire department. The firefighters' union sued claiming the program violated the charter and had a discriminatory intent. The trial court agreed and enjoined implementation, but the appellate court reversed. On appeal, the Supreme Court upheld the program, 6-to1.

     The justices found that completion of the apprentice program was consistent with merit, fitness, efficiency, character, and industry because it "educates and trains participants for the position of firefighter recruit and provides unique exposure to the Dayton Fire Department by pairing each apprentice with a firefighter for a mentoring relationship,"

     The preference points were not based on race or gender and participants in the program include nonminorities.

     The dissenting justice found the process allowed the city "to artificially inflate the scores of selected applicants, who may belong to a particular class of persons chosen for special consideration." IAFF L-136 v. Dayton Civil Serv. Bd., #2004-1103, 107 Ohio St.3d 10, 2005 Ohio 5826, 836 N.E.2d 544, 2005 Ohio Lexis 2672 (2005).

     • Click here to view the opinion on the Internet.

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Applicant Rejections

     Black applicant for the Pennsylvania State Police, who was rejected because of an expunged criminal conviction, loses his for race discrimination claim. Management's refusal to hire him because of a theft of $4,000 six years earlier was a legitimate reason for rejection. Foxworth v. Pennsylvania State Police, #03-CV-6795, 2005 U.S. Dist. Lexis 33639 (E.D. Pa. 2005).

Attorneys' Fees and Legal Defense Rights

     Federal court awards $995,781 in legal fees and $26,873 in costs to counsel for an employer that was sued by the EEOC without just cause. EEOC v. Robert L Reeves & Assoc., #2:00-cv-10515, 2006 U.S. Dist. Lexis 4395 (C.D. Cal. 2006) -- Order Granting Fees [Doc. 676]

Collective Bargaining - In General

     Illinois appellate court holds for purposes of the state's bargaining laws, the Dept. of Corrections is not a "joint employer" of workers hired by a medical services contracting firm. AFSCME C-31 v. Illinois State Labor Rel. Bd., #99074, 216 Ill.2d 569, 839 N.E.2d 479, 2005 Ill. Lexis 975 (2005).

Collective Bargaining - Duty to Bargain

     In a 2-to-1 decision, an Illinois appellate court concludes that management did not commit an unfair labor practice by failing to bargain with unions over the issue of parking fees. Univ. of Ill. v. Lab. Rel. Bd. (FOP), #4-04-0484, 361 Ill.App.3d 256, 836 N.E.2d 187, 2005 Ill. App. Lexis 1008; Univ. of Ill. v. Lab. Rel. Bd. (SIEU), #4-04-0359, 359 Ill.App.3d 1116, 836 N.E.2d 199, 2005 Ill. App. Lexis 1007 (4th Dist. 2005).

Disciplinary Appeals & Challenges- In General

     No "double-barreling": appellate court rejects an arbitration demand challenging the termination of a police officer that unsuccessfully appealed to the courts. City of Rockford v. Unit Six P.B.A., #2-05-0467, 2005 Ill. App. Lexis 1291 (2005), citing Peoria Firefighters L-544 v. Korn, 229 Ill.App.3d 1002 (1992).

Disciplinary Hearings - Proof Required

     A state training board's finding that a cadet had cheated on an exam needs only be supported by a preponderance of the evidence. A clear and convincing evidence standard is not required. Suber v. Pennsylvania Cmsn. on Crime, #265 C.D. 2005, 885 A.2d 678, 2005 Pa. Commw. Lexis 643 (Pa. Commw. 2005).

     Arbitrator rejects the defense that a police officer failed a random drug test because he took nonprescription Living Harvest hemp seed oil to alleviate sinus problems. The health store's record of sales did not confirm his purchases, and the product is manufactured to remove any THC contaminates. City of Dayton and FOP Lodge 44, AAA #53-390-00178-04 (Bell, 2005).

Disciplinary Procedures - Delays & Time Limits

     Court annuls disciplinary action taken against New Jersey police officers who participated in a mass sick call because management waited beyond the statutory 45-day minimum to initiate administrative charges. Aristizibal v. City of Atlantic City, #ATL-L-289-05, 380 N.J. Super. 405, 882 A.2d 436, 2005 N.J. Super. Lexis 294 (2005).

Discovery, Publicity and Media Rights

     Missouri appellate court allows a person who is accused of assaulting officers to obtain internal investigation statements from the arresting officers and other citizens who have complained about the officers. State of Missouri ex rel. Springfield v. Brown, #27027, 2005 Mo. App. Lexis 1697 (2005).

     President issues an Executive Order to improve the processing of information requests, which requires agencies to designate a Chief FOIA Officer and to create FOIA Requester Service Centers. "Improving Agency Disclosure of Information," Executive Order 13392 (Dec. 14, 2005).

Handicap Laws / Abilities Discrimination - In General

     Federal court allows four former Philadelphia police officers who were terminated for being "permanently and partially disabled" to proceed with their state and federal discrimination claims. Keys v. City of Philadelphia, #04-0766, 2005 U.S. Dist. Lexis 30137, 17 AD Cases (BNA) 714 (E.D. Pa. 2005).

Heart Problems

     Because of a duty-related presumption law, a California appellate court overturns a Workers' Compensation Appeals Board's finding that a correctional officer's heart trouble was unrelated to his job. The officer had developed an upper respiratory viral infection and bronchitis, which spread to the heart, causing a fatal heart attack while off duty. Jackson v. Workers' Comp. App. Bd., #C049041A, 133 Cal.App.4th 965, 35 Cal.Rptr.3d 256, 2005 Cal. App. Lexis 1673 (3d App. Dist. 2005).

Injuries to Employees

     Louisiana appellate court affirms an award to a sheriff's deputy that was injured during an on-duty training accident. In addition to medical expenses, he received $150,000 for pain and suffering. Albert v. Farm Bur. Insur. Co., #05-0352, 2005 La. App. Lexis 2329, 2005 WL 2864786 (2005).

Light Duty Assignments

     Arbitrator overturns a management decision to reassign light duty firefighters from their regular 24-hour shift assignments to 8-hour day shifts. City of Fairbanks and Firefighters L-1324, 121 LA (BNA) 693 (Landau, 2005).

Military Leave

     Dept. of Labor issues final regulations under the Uniformed Services Employment and Reemployment Rights Act of 1994; they became effective on Jan. 18, 2006. 20 CFR Part 1002, 70 (242) Fed. Reg. 75245-75313 (2005-12-16).

Privacy Rights

     Arbitrator upholds the right of a city to require all police employees to enroll in an electronic deposit system in a bank of the employee's choosing. City of Bedford, Ohio and FOP L- 67, 121 LA(BNA) 1214 (Skulina, 2005).

Race: Reverse Discrimination

     Federal jury awards $3.5 million to six white firefighters who alleged that the Chicago Fire Dept's use of "race norming" in a 1986 examination undermined their careers. Biondo v. Chicago, #88 C 3773, 44 (2139) G.E.R.R. (BNA) 38 (N.D. Ill. 12/16/05). Prior decis. at 382 F.3d 680, 2004 U.S. App. Lexis 18245 (7th Cir. 2004).

     Federal jury awards four white Mobile Fire Dept. captains $135,000 each because they were passed over for promotion to select a lesser qualified black candidate. Stringfellow v. Mobile, #04 CV 0281, 44 (2139) G.E.R.R. (BNA) 39 (S.D. Ala., 2005).

Reinstatement and Alternative Remedies

     A federal agency is not required to reinstate a worker at the pay level to which he believes he would have been promoted, but for an overturned termination decision. Fernand v. Dept. of the Treasury, #AT-0432-03-0753-I-1, 100 M.S.P.R. 259, 2005 MSPB Lexis 5104 (2005).

Retaliatory Personnel Action

     Federal appeals court upholds a $75,000 verdict awarded to a city employee who suffered retaliatory action. Gronowski v. Spencer, #04-2605, 424 F.3d 285, 2005 U.S. App. Lexis 20114 (2nd Cir. 2005).

Retirement Rights and Benefits

     Federal court upholds a proposed EEOC Regulation [68 (134) Fed. Reg. 41542-49] that will allow employers to provide retirees 65 and older with health benefits that are inferior to the benefits given to younger retirees. AARP v. EEOC, #05-CV-509, 390 F.Supp.2d 437, 96 FEPCases (BNA) 994, 2005 U.S. Dist. Lexis 21495 (E.D.Pa. 2005), relying on language in National Cable v. Brand X, 125 S.Ct. 2688 (2005). The EEOC notes that rising health care costs and a larger numbers of workers nearing retirement age created an incentive for employers to eliminate all health benefits for retirees.

     New Jersey Benefits Review Task Force Report recommends increasing the retirement age for public employees, switching from a defined benefit to a defined contribution plan and requiring participants to pay a larger share of their health costs.

Suspensions and Administrative Leave

     Eighth Circuit finds that a public employee does not suffer an adverse employment action by being placed on paid administrative leave for 89 days while the department investigates potential wrongdoing on his part. Singletary v. Missouri Dept. of Corr., 8th Cir., #04-3505, 423 F.3d 886, 2005 U.S. App. Lexis 19761; 96 FEP Cases (BNA) 807 (8th Cir. 2005).

Union and Associational Activity

     Federal appeals court rejects a firefighter's claim that his failure to receive a promotion was retaliation for his union activity. Edgar v. Collierville, #04-5986, 2005 U.S. App. Lexis 27776 (6th Cir. 2005).

Vehicle Related

     California appellate court upholds a law allowing public agencies to recover many costs associated with a DUI arrest or accident, including response and investigation time. Cal. Hwy. Patrol v. Super. Ct. (Allende), #A109209, 135 Cal.App.4th 488, 2006 Cal. App. Lexis 3 (1st Dist. 2006).

Whistleblower Requirements and Protection

     First Circuit, in a 2-to-1 decision, affirms a $125,000 award to a former undercover drug agent against two of his superiors. Following his complaints of possible corruption by coworkers, he was fired because of an expunged, three-year-old conviction for domestic abuse. Tejada-Batista v. Morales, 424 F.3d 97, 2005 U.S. App. Lexis 20109, 23 IER Cases (BNA) 828 (1st Cir.).

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     Occupational Safety: OSHA's 32-page Guidelines for Employers to Reduce Motor Vehicle Crashes offers information to help employers design an effective driver safety program.

     Taxation: The Internal Revenue Service has updated its Federal-State Reference Guide that provides information on social security, Medicare and tax withholding for state and local governments and their employees. Publication 963 (2005).

     Teleworking: The OPM reported that a total of 752,337 federal employees were declared eligible to telework by their agencies last year, and 140,694 employees actually teleworked in 2004. The Status of Telework in the Federal Government 2005.

Reference:

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