January, 2000 web edition

City that unilaterally changed the police work periods from 4/10 to 5/8 failed to bargain the change of a past practice.  Arbitrator awards the affected officers an estimated $20,000 each.

     Anchorage, Alaska, will pay an estimated $4 million in lost overtime after the city changed the police workweek from four 10-hour days to five 8-hour days per week.  The arbitrator determined that officers lost overtime that is compensated at time and a half.

     While the change was supposed to save the city $400,000 a year, the penalty may now be ten times that amount.  In a prior ruling, the arbitrator found that the city had breached the "past practices" clause in the bargaining agreement.  Even without the clause, management must bargain over the subject of wages and hours.

     The arbitrator rejected a defense that the change was permitted under a general management rights clause.  The CBA did not have zipper clause and there was no proof that the union waived or acquiesced in the issue.  Anchorage Police Dept. Emplees. Assn. and Anchorage, AAA Case # 75-L390-00142-97 (Gaunt, 1998, 1999).

N.H. Supreme Court overturns a decision to outsource janitorial work and to terminate all of the janitorial staff.

     A public agency in New Hampshire "laid off" union janitors and contracted with private companies to perform the work at reduced wages.  The state's Public Employee Labor Relations Board found it was an unfair labor practice, and the employer appealed.  With two dissenting votes, the N.H. Supreme Court said the action did not result in a true layoff because the same jobs continued.  It was not a reorganization because the amount and nature of the work did not change.

     While a public employer may have a management prerogative to change the amount or nature of the work performed by its bargaining unit, it can not lawfully terminate bargaining unit employees during the term of the CBA and subcontract with private companies to perform their work. Hillsboro-Deering Sch. Dist. v. N.H. Pub. Empl. Lab. Rel. Bd., #97-147, 1999 N.H. Lexis 68, 737 A.2d 1098.

Text: www.state.nh.us/courts/supreme/opinions.htm

At the pretermination "Loudermill" hearing, an employee was not entitled to learn the identity of the coworkers who reported his intoxication while on-duty.

     A New Mexico city terminated a career employee for appearing to be under the influence of alcohol while on duty and for refusing a drug test.  At the Loudermill (pretermination) hearing, he demanded to know the identity of the coworkers who had reported him.  The city refused to reveal names at that stage of the process.  He did not seek a post-termination hearing, and filed suit for Due Process violations.

     The U.S. District Court dismissed his claims, and a three-judge appellate panel has affirmed.  Loudermill "does not require an elaborate or formal pretermination hearing, only that the employee be given notice of the charges and an opportunity to respond."  Cleveland v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487 (1985).

     The accused employee was represented by counsel, and was given an opportunity to respond to the charges. "The City was not required to give [him] the names of the coworkers who made the allegations against him."  Herrera v. City of Albuquerque, # 98-2243, 1999 U.S. App. Lexis 25562 (10th Cir.).

Full text: www.kscourts.org/ca10/

Back pay is not enough to remedy a Loudermill violation. Employee entitled to have a jury consider his claim for "emotional" damages resultant from an improper termination.

     A fire chief summarily terminated a firefighter in violation of his Due Process rights under Loudermill.  He filed suit, seeking damages.  The city sought to avoid liability because of the payment of lost wages to the plaintiff.  A three-judge appeals court rejected the defense.

     While an award of back pay remedies any claim for lost wages, it  does not bar an employee's claim for emotional damages. The plaintiff "has suffered a deprivation of a property interest that has not been entirely eliminated by subsequent corrective action ..."  Lovingier v. City of Black Hawk, 1999 U.S. App. Lexis 29752 (Unpub. 10th Cir.).

Milwaukee police rule prohibiting officers from discussing matters under internal investigation challenged.  Appellate court remands for findings.

     Under a 1998 directive, when a Milwaukee police officer would lodge a complaint against another officer, the complaining officer was to be instructed not to discuss the matter with anyone except members of the Internal Affairs Division. Another directive said, except for EEOC complaints, that:

     Complaining members are instructed that they cannot talk to anybody regarding the matter under investigation; this includes their lawyer and/or union representative.

     The union brought suit in Federal Court, and the judge issued a Temporary Restraining Order.  The police chief then rescinded prior directives but "reminded" officers of a rule requiring officers to "treat as confidential the official business of the Department."

     He said this would prohibit "union or other representation for any Department member when interviewed in connection with an internal investigation or complaint that does not involve potential criminal charges against the member or an objective, reasonable probability of disciplinary action against that member."

     When asked in court, the chief conceded that “an officer might fear discipline if [he/she] reported police corruption or other misconduct to the FBI or a state prosecutor, if that misconduct was being internally investigated.” Because an internal investigation can take a year or more, and the public interest in disclosing relevant information “is certainly significant.”

     The union took the dispute to the Seventh Circuit.  The three-judge appellate panel complained that "litigation seems to have replaced common sense," and remanded the action for a preliminary injunction hearing.  Milwaukee Police Assn. v. Jones, #98-2904, 192 F.3d 742, 1999 U.S. App. Lexis 23357, 15 IER Cases (BNA) 961.

Full text: www.kentlaw.edu/7circuit/

»  Editor's Note: We previously reported [1997 FP 132-3] that an arbitrator upheld the punishment of a corrections officer who disobeyed a rule prohibiting the discussion of a pending internal investigation with one's coworkers. It did not apply to legal counsel.  Minn. Dept. of Corrections and AFSCME C-6 (Henderson), RMS #96-PA-2070 (Imes, 1996). The directive stated:

     Effective immediately you are not to discuss the subject matter of this investigation with any other Dept. of Corrections employees.  Such discussion may give the appearance that you are attempting to influence the possible testimony in this matter with other Dept. of Corrections employees and may form the basis for disciplinary action against you.

     An order not to discuss one's interview seems overly broad, and three exceptions should be formally recognized. The first is the Due Process “right” to discuss the interview with the employee's union representative and/or an attorney.

     The second is the "privilege" of discussing the interview with one's spouse, which is embodied in various U.S. Supreme Court decisions that recognize the importance of marital communications.  Any spousal discussion should be accompanied by a warning that the conversation must remain secret.

     The third exception is the moral and ethical duty to report an incident to outside investigators or prosecutors, if the employee has an objectively good faith suspicion that there may be a cover-up.  This may also be protected conduct under a whistleblower statute or Executive Order.

     While a governmental employee does not surrender his constitutional right of freedom of speech, the employee cannot indiscriminately use the First Amendment freedom to impair an internal investigation. See Ely v. Honaker, 451 F.Supp. 16 (W.D.Va. 1977).

     Employees who have engaged in or have witnessed misconduct may attempt to harmonize their stories.  To penetrate the “Code of silence,” internal investigators need to find testimonial variances and to exploit these.  See, in general, “The blue wall of silence,” 59 U. Pitt. Law Rev. 233 (1998); “Deceit, pretext, and trickery: lies by the police,” 76 Ore. Law Rev. 775 (1997); “Testilying: Police perjury,” 67 U. Colo. Law Rev. 1037 (1996); Rep. of Cmsn. to Inves. [NYC] Police Corruption (Mollen, 1994) and (Knapp, 1972); Rep. of Indep. Cmsn. on the L.A. Police Dept. (Christopher, 1991).

Advice of counsel not to attend a required hearing cannot protect an employee.  Reliance on bad legal advice was fatal to his claim for reinstatement.

     The Massachusetts Parole Board terminated a parole officer who failed to appear at an investigatory hearing on the advice of his attorney.  A trial court ordered the Board to reinstate the officer, but a three-judge appeals panel has reversed.

     An employee's good faith reliance on the advice of his attorney does not bar his discharge.  Reliance upon the erroneous advice of one's attorney runs counter to the legal principle that a person is held accountable for the conclusions of his attorney.  They said:

     To permit an employee to mitigate his penalty because he relied in good faith upon the advice of counsel which proved erroneous would seriously jeopardize efficient internal surveillance and quality control by government agencies and would place any employee who hires a lawyer at a distinct advantage over one who does not.

Mass. Parole Bd v. Civil Serv. Cmsn., #98-P-148, 47 Mass.App. 760, 716 N.E.2d 155, 1999 Mass. App. Lexis 1063.

Full text: www.state.ma.us/courts/courts.htm

»  Research Note: The Massachusetts Supreme Court previously held that the discharge of a public employee was not barred because he relied upon the advice of counsel. His attorney erroneously informed him that he had a legal right not to answer certain questions.  Silverio v. Municipal Court of Boston, 355 Mass. 623, 247 N.E.2d 379, cert. denied, 396 U.S. 878, 90 S.Ct. 151 (1969).

A city's practice of observing urine sample collections for drug testing did not violate the privacy of firefighters.

     We reported the trial court's decision [1995 FP 167] and the appellate opinion [1998 FP 101-2].  Now, for a third time, a federal court has held that the City of Wilmington, Delaware, did not violate the constitutional rights of its firefighters.

     The process would not be highly offensive to a reasonable person, and is less so to firefighters.  There was no necessity to create dry rooms.  Wilcher v. City of Wilmington, 60 F.Supp.2d 298, 1999 U.S. Dist. Lexis 12836 (D. Del.), on remand from 139 F.3d 366 (3rd Cir.).

Federal appeals court declines to enforce a "release" on an employment application form, because the defamatory statements allegedly were false and intentionally made.

     A former sheriff's dept. property room employee was offered a similar job by a city police dept. When contacted as a reference, the sheriff allegedly accused the job candidate of losing inventoried property, making a false insurance claim, perjury, lying in a police report and theft of personal property.  The job offer was withdrawn, and the disappointed candidate sued the sheriff and county.

     The plaintiff had signed a release that authorized the release of "medical, physical and mental records or reports including all information of a confidential or privileged nature and photo copies of same if requested."  It excused the recipient from any liability resulting from the providing of this information.

     The Ninth Circuit noted, in California, that “contractual releases of future liability for fraud and other intentional wrongs are invariably invalidated,” citing Farnham v. Superior Court, 60 Cal.App.4th 69, 70 Cal.Rptr.2d 85 (1997). The release was invalid, and none of the statutory immunities of the sheriff or county applied.  McQuirk v. Donnelley, #97-17174, 189 F.3d 793, 1999 U.S. App. Lexis 19708, 15 IER Cases (BNA) 769 (9th Cir.).

 Full text: www.ce9.uscourts.gov/opinions/

»  Editor's Note: We previously reported [92 FP 166-7] that an appellate court in Texas overturned a $1 million award for allegedly false and defamatory opinions, given to a prospective employer by the police chief.  The panel noted that the plaintiff signed an unconditional release when she applied for the second position.

     "When a plaintiff has consented to a publication, the defendant is absolutely privileged to make it, even if it proves to be defamatory." The three justices said that “Consent creates an absolute privilege, which is unaffected by a finding that the speaker acted with malice.”  This also follows the Restatement (2d) of Torts §583, a well-respected legal treatise.  Smith v. Holley, 827 S.W.2d 433, 7 IER Cases (BNA) 1102 (Tex.App. 1992).

New Mexico appeals court allows a suit against the county because its jail officials recommended hiring an ex-officer, and omitted mention of misconduct which directly related to the position he sought with the new employer.

     A county psychiatric hospital hired an individual who was given an unqualified favorable recommendation by the Director and a Captain at the county's Detention Center, when in fact, the ex-officer had been investigated for sexually harassing female inmates.

     A three-judge appellate panel had no difficulty in assigning legal responsibility.  The Detention Center could have remained silent in response to requests for information, and instead, elected to recommend the officer as an excellent employee and omitted mentioning disciplinary action, both taken and recommended, by the same officials who recommended him.

     The panel said that "public policy supports full and accurate disclosure of nonconfidential information by employers, and we seek to encourage employers in that direction."  Here, the response praised the officer's abilities but omitted any mention of a foreseeable risk.  Davis v. Bd. of Cmsnrs. of Dona Ana Co., 1999 N.M. App. Lexis 79, 15 IER Cases (BNA) 741.

Text: cochiti.nm.org/menu/sup-ct-opinions.htm

OSHA published proposed federal rules aimed at preventing on-the-job repetitive motion injuries.  They would have required employers to adopt ergonomics programs to minimize hazards if even a few employees had suffered injuries.  OSHA planed to issue final rules, before the end of the year.

Updated Note: The proposed rules have been withdrawn under pressure from the Congress; this article is only for historical reference.

     Under the rules, employers would have been required to maintain pay and benefits for workers who suffer debilitating injuries, if job activities and work conditions are “reasonably likely to cause or contribute to the type of injury” reported.

      The State of Washington has proposed its own rules.

See: www.lni.wa.gov/wisha/ergo/

      In Miami, a woman has settled her worker's comp. claim for carpal tunnel syndrome, allegedly caused by repetitive motion while employed as a “phone sex” operator.   She said she was required to keep callers on line as long as possible, and would masturbate as often as seven times a day while speaking with callers.  She claimed weekly benefits of $267 a week and reimbursement for $30,000 in medical bills.  [ID Confidential] v. Fla. Dept. of Labor and Empl. Security (Nov. 1999).

Federal court in MD rejects claim that fire investigators are “fire protection” employees under 29 C.F.R. 553.230(a), with a heightened overtime requirement.

     Maryland county fire investigators sought overtime as “employees engaged in law enforcement activities” within the meaning of FLSA §207(k) and 29 C.F.R. §553.230(b).  The county said they were “employees engaged in fire protection activities” within the meaning of §207(k) and 29 C.F.R. §553.230(a).  The county removed their law enforcement powers in June, 1997, so the dispute was solely about back pay.

     The court noted that the DOL Wage and Hour Div. has issued a Ruling that arson investigators are not covered by the fire protection activities exemption, but fall under the law enforcement exemption.  The fact that the fire dept. is the employer of arson investigators does not change the result for purposes of 29 C.F.R. §553.211(c).  DOL-WHD Ltr. Rul. of Feb. 26, 1993.

     "The record supports a conclusion that the Plaintiffs' primary duty was to investigate the causes and origins of fires."  Under 29 C.F.R. §553.212, an employer "must prove that the investigators spent more than 80 percent of their time performing fire protection activities."  The judge found the county did not act in good faith, and doubled the award of back pay.  Lockwood v. Prince George's Co., 58 F.Supp.2d 651, 1999 U.S. Dist. Lexis 11574 (D.Md.).

»  Note: A federal appeals court said that although city arson investigators worked for the Fire Dept., were assigned to fire stations, and spend time at fire scenes, they did not engage in the prevention, control or extinguishment of fires.  Carlson v. Minneapolis, 925 F.2d 264, 1991 U.S. App. Lexis 1911, 30 WH Cases2d (BNA) 249 (8th Cir.).

»  Caution: Removing peace officer powers from arson investigators might prevent a city from taking advantage of the law enforcement exception as well.

Federal appeals court upholds right of a rival organization of minority police officers to march in parades and use department facilities to post notices and recruit members.

     We previously reported [99 FP 72-73] that a rival organization of Hispanic officers in the NYPD has sought official department recognition through litigation.  Latino Ofcrs. Assn. v. City of N.Y., 1998 U.S. Dist. Lexis 2018 and at 1997 U.S. Dist. Lexis 12353 (S.D.N.Y.).  

     Recognition authorizes an employee organization to use NYPD facilities for meetings, to post notices, to recruit members at the academy and to march in a parade in uniform -- behind the organization's banner.

     A federal appellate court said that while a police dept. has a justifiable interest in controlling how its uniform and symbols are used, the NYPD could not censor this group of 1,500 officers when it recognizes at least 25 other organizations.

     The three-judge panel expressed no opinion as to whether management could constitutionally prohibit all fraternal organizations from marching in uniform.  Latino Ofcrs. Assn. v. City of N.Y., # 99-7657, 1999 U.S. App. Lexis 29970 (2nd Cir.).

Full text: www.tourolaw.edu/2ndCircuit/

Appellate court allows a wrongful death lawsuit against a supervisor who refused to allow a coworker to perform CPR on the dying worker.

     A five-judge appellate panel in New York has held that a supervisor who refused to allow a subordinate to perform CPR on a coworker suffering from a heart attack may be liable for intentional interference with lifesaving medical assistance. The coworker died from the heart attack.

     The surviving spouse sued the supervisor and employer, alleging intentional interference with lifesaving medical assistance. "One who intentionally prevents a third person from giving to another aid necessary to prevent physical harm to him, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving." Restatement of Torts (2d) 326.

     The panel rejected the defense that Worker's Compensation provided the exclusive remedy available. There is a well-recognized exception to the exclusivity provisions of the Workers' Compensation Law for intentional actions by a coworker or supervisor.  Barnes v. Dungan, 690 N.Y.S.2d 338, 1999 N.Y. App. Div. Lexis 5556.

Text: www.courts.state.ny.us/reporter/Decisions.htm

President issues an Executive Order clarifying and minimizing the preemption of state laws.

     Federal agencies are now required to interpret a federal statute as preemptive only when it contains an express provision or there is clear evidence that the Congress intended the preemption of state law.  The new policy is, in part, to implement the policy intended by the Unfunded Mandates Reform Act.

     Any regulatory preemption of state law "shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated."  However, the Order also provides that it "is not intended to create any right ... enforceable at law.. against the United States, its agencies, [or] its officers..."  Executive Order No. 13132.

Full text: www.pub.whitehouse.gov/WH/Publications/html/Publications.html

Appeals court rejects challenge to FBI's rule against agents serving in the Ready Reserve.  Federal intelligence services are exempt from the USERRA.

     For at least forty years, the FBI Director has prohibited Special Agents from serving in the Ready Reserve by designating them as "key federal employees." The rationale is that the FBI is "fully prepared during a national emergency to [conduct] ...  counter-intelligence, sabotage and neutrality responsibilities."  Agents are allowed to serve in the Standby Reserve and cannot be called into active service in time of national emergency, except when staffing is at crisis levels; 10 U.S. Code §12301, 12306.

     Nearly a hundred agents filed suit under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S. Code § 4301. The District Court dismissed their action, and a three-judge appellate court has affirmed.

     The Congress intended to preclude judicial review of the military leave policies of the CIA, DIA, FBI and NSC.  Dew v. U.S., #98-6102, 192 F.3d 366, 1999 U.S. App. Lexis 23710, 162 L.R.R.M. (BNA) 2327 (2nd Cir.).

Full text: www.tourolaw.edu/2ndCircuit/

New York does not require a public employer to follow its own internal procedures for investigating employee misconduct, unless the affected employee relied on a written procedure when he accepted employment.

     A professor who was found guilty of sexually harassing students sought damages from his employer, alleging that a state university was negligent and in breach of contract, because it failed to follow its own policies and procedures in investigating sexual harassment complaints against him.  He claimed as damages, legal defense costs, loss of income, injury to reputation and mental stress.

     In a 5-1 opinion, New York's highest court said that an employer is not contractually bound to follow its own internal written policies unless the “employee detrimentally relied on that policy in accepting the employment.”  Mass v. Cornell Univ., 94 N.Y.2d 162, 723 N.E.2d 65, 1999 N.Y. Lexis 3737; Stoll v. Cornell Univ., 94 N.Y.2d 162, 723 N.E.2d 65,1999 N.Y. Lexis 3738.

Full text: www.law.cornell.edu/ny/ctap/overview.html

»  Research Note: In Florida, a public agency must follow own personnel rules, but the ruling did not extend to internal investigation procedures.  Dept. of Law Enforcement v. Allen, 400 So.2d 777 (Fla. App. 1981).

     An appellate court in New Mexico said that an employee may have a claim for breach of implied contract based on an employer's failure to follow disciplinary policies contained in an employee handbook. The court went beyond a handbook disclaimer stating that policies did not establish a contractual relationship.  It is a question of fact whether a handbook, when combined with an employer's actual practices, creates enforceable rights.  Kiedrowski v. Citizens Bank, 119 N.M. 572, 893 P.2d 468, 1995 N.M. App. Lexis 14, 10 IER Cases (BNA) 840 (N.M.App. 1995); cert. den. 890 P.2d 1321.

Federal court allows a party to a lawsuit to have his lawyer present during an non-psychological independent medical exam.

     A federal court in Philadelphia has upheld the right of a litigant to be accompanied by legal counsel of one's choosing at an independent medical exam (IME) -- but not during a psychological exam, "which may depend more on unimpeded one-on-one communication between doctor and patient."  Federal Rule of Civil Procedure 35(a), which governs physical and mental examinations of a party, is silent on the issue of the presence of counsel.

     The judge noted that in theory, an IME is to be scientific, rather than adversarial, "experience suggests that it is often the latter. The party being examined may have to respond to limitless questions by a trained representative of the opposing side without check."  Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis 4543 (E.D. Pa.).

Full text: www.paed.uscourts.gov/opinions/99D0269P.HTM

     Other cases have come to a similar conclusion.  Shirsat v. Mut. Pharm., 169 F.R.D. 68 (E.D. Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D. Pa. 1981); and Brandenberg v. El Al Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978).

Eleventh Circuit upholds remedial promotions for white officers who were passed over, but significantly reduces the damages awarded.

     The city of Miami has engaged in a 20-year battle with the FOP over promotion practices.  A federal appeals panel recently upheld a lower ruling that certain employment practices were discriminatory, erred in ordering the city to pay nearly $9 million to remedy the discrimination. The award to 35 officers was reduced to about $500,000.

     Full remedial relief for all 35 officers was “an unfair and sweeping windfall ... and an abuse of ... discretion.”  U.S. v. City of Miami, #98-4626, 1999 U.S. App. Lexis 29964, 81 FEP Cases (BNA) 397 (11th Cir.).

Full text: www.law.emory.edu/11circuit/index.html

Appeals court upholds the termination of a woman after the sexual relationship she had with her boss had ended.

     A legal secretary was fired when her boss ended their romantic relationship.  She sued for sex discrimination and won in the trial court.  A five-judge appellate panel has reversed.

     The panel said, “Although surely antithetical to good business practices, discrimination against an employee on the basis of a failed voluntary sexual relationship does not of itself constitute discrimination because of sex...”  Mauro v. Orville, 1999 N.Y. App. Div. Lexis 10935.

Text: cochiti.nm.org/menu/sup-ct-opinions.htm

Federal appeals court upholds a jury verdict that a woman officer's transfer from the mounted unit to the training academy was a constructive demotion.

     The jury awarded the plaintiff compensatory damages against the city of $10,000 for harassment and $100,000 for retaliation. She also recovered $ 10,000 punitive and $ 5,000 compensatory damages each, against two named officers.

     The defendants sought to set aside the verdict, because she had requested the transfer.  The evidence showed the transfer was sought because she feared for her safety if she remained in that unit -- after reporting the sexual harassment.

     The appellate panel said that a city “may be liable if it had constructive knowledge... [and] should have known what was going on but failed to address it.”  Sharp v. City of Houston, 164 F.3d 923, 1999 U.S. App. Lexis 315, 78 FEP Cases (BNA) 1779 (5th Cir. 1999).

»  Editor's Note: The retaliatory conduct must be sufficiently severe before a court will label a requested transfer or demotion as involuntary.  In a recent case, the 7th Circuit denied relief to a supervisor who asked for a demotion to escape allegedly hostile working conditions. The three-judge panel reasoned that the plaintiff's voluntary downgrade was not a constructive demotion.

     She failed to show that the minor grievances had created an intolerable work environment.  Simpson v. Borg-Warner, #99-1048, 1999 U.S. App. Lexis 30018 (7th Cir.).

Full text: www.kentlaw.edu/7circuit/

Texas pays $235,000 to three former criminal justice employees who filed a whistleblower lawsuit.  Failure to follow grievance procedures did not defeat their claims.

     A crime victim professional wrote a memo about two projects seeking federal funding complaining that another staff member referred to one application as the “homo project.”  She also protested salary cuts for the staff of grantee organizations.  The state fired her, and two associates, for "exhibiting poor work performance and [a] lack of professionalism."

     The trial court dismissed their suit, concluding that the plaintiffs failed to exhaust their available grievance procedures as required under the state's Whistleblower law; Tex. Gov't Code §554.006.  A three-judge appellate panel reversed, noting that it was reasonable for the plaintiffs to believe that grievance procedures applied only to active employees.

     The governor's office has claimed there was no merit to the suit, and the settlement avoided the “expense of protracted litigation.”  The Texas Criminal Justice Division distributes $100 million a year in federal grants.  Curbo v. State  of Texas, 998 S.W.2d 337, 1999 Tex. App. Lexis 5546.

Text: www.courts.state.tx.us/appcourt.htm

     FBI whistleblower regulation adopted.  We previously reported on the proposed rule last March [1999 FP 45].  Unlike other federal employees, FBI whistleblowers are not protected if they report misconduct or errors to the Congress or in open court.  They do not have a legally-enforceable right to an administrative hearing for retaliation or to judicial review.  A.G. Order No. 2264-99, 28 C.F.R. 27.1-6,  64 Fed. Reg. No. 210, Pp. 58782-88 (Nov. 1, 1999).  Full text search: gpo.lib.purdue.edu/

     Marital Status Discrimination: We previously reported [1998 FP 43-4] that Minneapolis was ordered to pay a $1,500,000 civil penalty for pervasive sex discrimination in its police dept. A married police couple also was awarded $271,000 in compensatory and punitive damages.  Those awards were reversed by an appellate court [1998 FP 168]. The city has now settled with the couple for $184,000.  State, Dept. Hum. Rts. v. City of Mnpls., 37 (1835) G.E.R.R. (BNA) 1420 (10-21-1999).

     “Avoiding claims of discrimination based on personal appearance, grooming and hygiene standards,” 15 (1) The Labor Lawyer (ABA) 19-45, (Summer 1999). E mail the ABA at: abasvcctr@abanet.org  ($19.95).

Disciplinary Hearings:  see  Disciplinary Offenses - Insubordination.

Disciplinary Investigations:  see  Personnel Manuals.

Sexual Harassment:  see  Personnel Manuals.

Page numbers in [brackets] refer to the print edition.

Anchorage Police Emp. and Anchorage, AAA # 75-L390-00142-97 (Gaunt, 1998, 1999). [3]
Barnes v. Dungan, 690 N.Y.S.2d 338, 1999 N.Y. App. Div. Lexis 5556. [10]
Brandenberg v. El Al Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978). [12]
Carlson v. Minneapolis, 925 F.2d 264, 1991 U.S. App. Lexis 1911 (8th Cir.). [9]
Cleveland v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487 (1985). [4]
Curbo v. State  of Texas, 998 S.W.2d 337, 1999 Tex. App. Lexis 5546. [14]
Davis v. Bd. of Cmsnrs. of Dona Ana Co., 1999 N.M. App. Lexis 79, 15 IER Cases 741. [8]
Dept. of Law Enforcement v. Allen, 400 So.2d 777 (Fla. App. 1981). [12]
Dew v. U.S., #98-6102, 192 F.3d 366, 1999 U.S. App. Lexis 23710 (2nd Cir.). [11]
Ely v. Honaker, 451 F.Supp. 16 (W.D.Va. 1977). [5]
Farnham v. Superior Court, 60 Cal.App.4th 69, 70 Cal.Rptr.2d 85 (1997). [7]
Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis 4543 (E.D. Pa.). [12]
Herrera v. City of Albuquerque, # 98-2243, 1999 U.S. App. Lexis 25562 (10th Cir.). [3-4]
Hillsboro-Deering Sch. Dist. v. N.H. PERB, 1999 N.H. Lexis 68, 737 A.2d 1098. [3]
ID Confidential v. Fla. Dept. of Labor and Empl. Security (Nov. 1999). [8-9]
Kiedrowski v. Citizens Bank, 893 P.2d 468, 1995 N.M. App. Lexis 14, 10 IER Cases 840. [12]
Latino Ofcrs. Assn. v. City of N.Y., # 99-7657, 1999 U.S. App. Lexis 29970 (2nd Cir.). [9-10]
Lockwood v. Prince George's Co., 58 F.Supp.2d 651, 1999 U.S. Dist. Lexis 11574 (D.Md.). [9]
Lovingier v. City of Black Hawk, 1999 U.S. App. Lexis 29752 (Unpub. 10th Cir.). [4]
Mass. Parole Bd v. Civil Serv. Cmsn., 716 N.E.2d 155, 1999 Mass. App. Lexis 1063. [6]
Mass v. Cornell Univ., 1999 N.Y. Lexis 3737. [11-12]
Mauro v. Orville, 1999 N.Y. App. Div. Lexis 10935. [13]
McQuirk v. Donnelley, #97-17174, 189 F.3d 793, 1999 U.S. App. Lexis 19708 (9th Cir.). [7]
Milwaukee Police Assn. v. Jones, #98-2904, 192 F.3d 742, 1999 U.S. App. Lexis 23357. [4-5]
Minn. Dept. of Corrections and AFSCME C-6 (Henderson), RMS #96-PA-2070 (Imes, 1996). [5]
Neumerski v. Califano, 513 F.Supp. 1011 (E.D. Pa. 1981). [12]
Sharp v. City of Houston, 164 F.3d 923, 1999 U.S. App. Lexis 315 (5th Cir.). [13-14]
Shirsat v. Mut. Pharm., 169 F.R.D. 68 (E.D. Pa. 1996). [12]
Silverio v. Munic. Court, 355 Mass. 623, 247 N.E.2d 379 (1969). [6]
Simpson v. Borg-Warner, #99-1048, 1999 U.S. App. Lexis 30018 (7th Cir.). [14]
Smith v. Holley, 827 S.W.2d 433, 7 IER Cases (BNA) 1102 (Tex.App. 1992). [7]
State, Dept. Hum. Rts. v. City of Mnpls., 37 (1835) G.E.R.R. (BNA) 1420 (10-21-1999). [15]
Stoll v. Cornell Univ., 1999 N.Y. Lexis 3738. [11-12]
U.S. v. City of Miami, #98-4626, 1999 U.S. App. Lexis 29964 (11th Cir.). [13]
Wilcher v. City of Wilmington, 60 F.Supp.2d 298, 1999 U.S. Dist. Lexis 12836 (D. Del.). [7]