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Legal Report November 2008


HOSTILE WORK ENVIRONMENT. A police officer who was harassed by his coworkers after he contracted hepatitis C may sue his employer for creating a hostile work environment. The employer’s argument—that the officer lied on his employment application—has no bearing on the case, according to a New Jersey court.

John Cicchetti applied for a police officer position with the Morris County Sheriff’s Office in early 1994. On the application, Cicchetti was asked whether he had ever been arrested or convicted of a crime. Though Cicchetti answered “no” on the application, he had been convicted of breaking and entering and theft 20 years earlier when he was 21 years old. Cicchetti had not been employed by a public entity at the time, and the record was expunged in 1990.

Cicchetti was hired by Morris County in July 1994. After he began working for the sheriff’s office, Cicchetti contracted hepatitis C, a blood-borne retrovirus. Beginning in the fall of 1998, two of Cicchetti’s coworkers, Gerald Marinelli and John McWilliams began a campaign of harassment and encouraged other employees to join in.

For example, coworkers refused to let Cicchetti relieve other officers, wore surgical gloves and masks around him, applied disinfectant to his equipment, refused to shake hand or eat meals with him, and repeatedly spewed mouthwash over his locker.

The sheriff’s office had an affirmative action plan in place that included discrimination prevention. In April 2000, Cicchetti filed a discrimination report with John Dempsey, the department’s affirmative action officer.

The discrimination continued, leading Cicchetti to file another report with Dempsey in May 2000. Dempsey told Cicchetti that Marinelli and McWilliams had been counseled and were told to “try to be more understanding.”

The harassment continued. In February 2002, Cicchetti resigned. In May of that year, he filed a discrimination lawsuit against the department and against Marinelli and McWilliams as individuals. Cicchetti asserted that harassment due to his medical condition created a hostile work environment.

The defendants requested summary judgment—a hearing based on the facts of a case without a trial. The sheriff’s department claimed that Cicchetti had no standing to sue because he had lied on his application about his criminal record and should not have been hired in the first place. Under New Jersey law, a public employee convicted of an offense “involving or touching on his public employment” is permanently barred from working as a public employee in the state. The Superior Court of New Jersey granted the summary judgment. Cicchetti appealed the decision.

The New Jersey Court of Appeals upheld the summary judgment in favor of the sheriff’s office, finding that under state law, employees can only be held liable for discrimination if they hold a supervisory position.

However, the court overturned the decision, finding in favor of Cicchetti. The court noted that while Cicchetti failed to disclose the prior conviction, the law does not automatically prevent private citizens convicted of crimes from ever serving as public employees. (Cicchetti v. Morris County Sheriff’s Office, New Jersey Court of Appeals, No. A-1626-05T1, 2008)

PREMISES LIABILITY. An employee attacked in a parking lot cannot hold the lot owner liable for failing to protect him from an unforeseen attack, according to the California Court of Appeal.

Mark Ericson was employed by Coast Trucking, an independent contractor that provided services for Federal Express (FedEx) at one of its San Diego terminals. The terminal is located on a large parcel of property. Ericson, assigned to the 3:00 p.m. to 5:00 a.m. shift, was required to park his personal vehicle and his work truck at the rear of the facility. This part of the terminal was unfenced and unlighted. In contrast, FedEx employees parked in a lighted, bustling lot where trucks were being constantly loaded and unloaded.

On June 27, 2003, at approximately 4:30 a.m., Ericson returned to his car to prepare to go home. A coworker found Ericson unconscious and lying in a pool of blood at about 6:00 a.m. Ericson’s car was idling with the keys locked in it; a backpack containing a CD player and other items was missing.

Ericson was transported to the emergency room where he was treated for a laceration on his scalp, a concussion, and severe vertigo. He did not remember being assaulted. The perpetrator was never identified.

Ericson sued FedEx for premises liability. He claimed that the company did not adequately protect the parking area despite the fact that he had seen vagrants on that part of the property. Also, Ericson noted that he thought cameras mounted on the top of the FedEx building were trained on the parking area, causing him to believe that security was monitoring the building perimeter.

FedEx requested summary judgment, noting that there had been no reports of violence or vagrants on the property during the five years that Ericson had worked there. Therefore, the company argued, Ericson’s attack was not foreseeable. Also, FedEx security testified that the building had no CCTV system at the time of the attack.

The Superior Court of San Diego County granted the summary judgment, ruling that the lack of security at the terminal did not increase the risk of harm to Ericson. Attorneys for Ericson appealed. (At some point between this ruling and the appellate court decision, Ericson died, and his brother took over the appeal. The court does not reveal what caused Ericson’s death.)

The California Court of Appeal upheld the lower court’s ruling. The court noted that Ericson failed to prove how FedEx’s lack of security procedures increased his risk of harm, especially since there had been no prior similar incidents of violence on the property.

The court noted that while Ericson saw unauthorized people on the property, he never reported them. Similarly, ruled the court, Ericson observed the cameras on the roof of the building but never asked, and was never told, what they were being used for. (Ericson v. Federal Express, California Court of Appeal, No. D049934, 2008)


ADA. A bill broadening the scope of the Americans with Disabilities Act (ADA) was signed into law (P.L. 110-325). Under the law, key provisions of the ADA are clarified. For example, prior law provided that a person is considered disabled if an impairment substantially limits a major life activity. The law defines a “major life activity” as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The law mandates that the “regarded as” provision not apply to transitory impairments expected to last six months or less. (The “regarded as” provision provides that a person is considered disabled if the employer regards him or her as disabled even if the person is not.)

The law also clearly states that a disabled person continues to bear the burden of proving that he or she is a qualified person with a disability.

CRUISE LINE SECURITY. Lawmakers explored the topic of security aboard cruise ships during a hearing before the Senate Commerce, Science, and Transportation Committee’s Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security. Several witnesses discussed cases in which cruise ship passengers were sexually assaulted, robbed, or went missing at sea.

Evelyn Fortier, vice president of policy for the Rape, Abuse, and Incest National Network (RAINN), recounted the case of one woman who was raped by a crewmember posing as a ship security guard. Another witness, Kendall Carver, recounted his frustrating attempt to gain one cruise line’s assistance in trying to locate his daughter who disappeared from a ship during her vacation and has never been found.

Because cruise ships operate in international waters or the jurisdictions of foreign countries, they are required to report crimes to the FBI or the U.S. Coast Guard. However, because the ship might be miles from the closest federal official, it often takes days for the FBI to arrive to investigate a scene. In that time, the investigation can be undermined.

Those speaking at the hearing noted that evidence can disappear, victims can be intimidated, and suspects can be coached. Also, the cruise industry is not required to disclose crime statistics, making it difficult to assess the rate of shipboard incidents.

Sen. John Kerry (D-MA), the subcommittee chairman, noted that the cruise industry lacks mandatory, standardized procedures to prevent and respond to criminal acts on board ships.

Terry Dale, president and CEO of Cruise Lines International Association, stated that mandatory procedures are unnecessary, because cruise lines have implemented voluntary measures to protect passengers. Among these, Dale noted, are ongoing meetings with federal officials, FBI-approved training materials for crew, and sexual assault prevention training.

To try to codify security standards, Kerry introduced a bill (S. 3204) that would have required cruise lines to install peep holes, security latches on cabin doors, and CCTV. (Congress has adjourned meaning that the bill must be reintroduced in the next session to be considered.) The bill would have required that all ships have crewmembers who are trained in crime scene investigation.

Under the bill, cruise lines would also be required to report all incidents of criminal activity to the Coast Guard, which would then make that information available to the public via the Internet.

GUARDS. Congress has approved and the President has signed a bill (H.R. 3068) that prohibits a company owned, controlled, or operated by anyone convicted of a felony from providing contract security guards for federal government buildings. The bill has become P.L. 110-356.

RAIL SAFETY. A bill designed to improve railroad safety (H.R. 2095) has been approved by Congress and has been signed by the President.

The new law (P.L. 110-432) reduces stress on workers by decreasing overall work hours and increasing the amount of time off between shifts. The measure also provides whistleblower protections for those employees who cooperate with a safety investigation, furnish rail accident information, or refuse to authorize the use of safety equipment, tracks, or structures that are in a hazardous condition. Employees could collect damages if subjected to mistreatment because of their whistleblower activity. Those guilty of safety violations would face criminal penalties.



SECURITY GUARDS. A new law (formerly H.B. 2421) recently enacted in Iowa will increase training requirements for security guards that work in commercial establishments that sell alcohol. The extra training will include anger-management techniques, recognition of false IDs, information on laws relating to alcohol consumption, and procedures for safe removal of patrons from the premises.

DISCRIMINATION. Under a new Iowa law (formerly S.B. 1088) it is illegal for employers to discriminate against an employee who is a plaintiff, defendant, or witness in a civil proceeding. Prior to the law, such discrimination was only illegal against those participating in a criminal lawsuit.

This column should not be construed as legal or legislative advice.