Court Holds Punitive Transfer Does Not Require Administrative Appeal

In Perez v. City of Westminster, the Court of Appeal held that even if an officer is accused of misconduct by his department, loses overtime opportunities, is transferred from SWAT and honor guard, not assigned trainees despite being a FTO, does not get to appeal  his discipline.  The Court relied on a strained interpretation of "punitive" action, chipping away at POBR rights and the well-established right to a White hearing.  The decision creates a conflict in the courts that will likely have to be resolved by the Supreme Court.

Internal affairs interviewed Officer Perez regarding a citizen complaint of excessive force during an arrest. The complainant claimed another Westminster officer had hit him in the face. Perez stated that he did not see this happen. The investigators told Perez the video and other officers’ testimony suggested Perez did see it. Perez reaffirmed he did not see the alleged excessive force.

Then, the City served Perez with a Notice of Intent to fire him. After a Skelly hearing, the Chief of Police reversed the findings based on insufficient evidence to sustain them. However, the Chief removed Perez from the SWAT team and honor guard. In addition, he refused to assign Perez and trainees in the FTO program and Perez lost significant overtime opportunities.

Perez argued the transfer from SWAT and loss of overtime opportunities was “punitive action” under POBR and that he should get to appeal. At trial, the Chief testified he removed Perez from the SWAT team because he had "lost confidence" in Perez’s honesty and ability to work cooperatively with others. He also testified Perez was removed from the honor guard because he thought there “was compelling information he had not been truthful” in the investigation. Ultimately, the Chief admitted his “lack of confidence” stemmed from the interval affairs investigation that he was unable to sustain, but denied Perez the right to appeal and have a neutral person decide. 

However, the court held that the loss of overtime and prestige did not render the transfers punitive, and that the Chief’s testimony showed the transfer was not “punitive,” but based on his lack of confidence in Perez.

This decision chips away at POBR rights long-established since White v. Sacramento.  In 1982, the California Supreme Court held that it violated POBR to transfer an officer to a lower paid position without giving them an opportunity to rebut the allegations against them.  The Court emphasized why POBR and the right to appeal are so important, noting "Erroneous action can only foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement services."  David P. Mastagni represented Dep. White.

But here, the Court of Appeal permitted a Department to discipline an officer based only on the Chief's personal hunch and without any right to appeal.  As a result, it is likely the Supreme Court will have to resolve the conflict.    

Court of Appeal Rules Employer May Seek a Second Doctor's Opinion About Fitness for Duty After Employee Returns from FMLA Leave

On March 15, 2014, the California Court of Appeal in White v. County of Los Angeles held an employer may order a second fitness for duty evaluation after the employee returns from medical leave under the Family Medical Leave Act ("FMLA").  Under the FMLA, an employee must be reinstated to work after being cleared by the employee's medical provider.  However, once reinstated, the employer may then order the employee to submit to an additional fitness for duty evaluation.

The White case involved a Senior District Attorney Investigator with the Los Angeles County District Attorney's Office.  After the investigator's brother-in-law passed away, she began having trouble at work.  The County was concerned with her work performance and questioned her judgment on occasions she was working in the field.  She took FMLA leave on June 6, 2011 to seek treatment for anxiety and depression.  After treatment, her medical provider determined she could return to work on September 7, 2011.

Upon the investigator's return, the County ordered her to appear for a medical evaluation conducted by a County-designated medical provider.  She did not attend the scheduled fitness for duty evaluation.  She then filed a lawsuit seeking to prevent the County from ordering her to attend the fitness for duty evaluation.  She argued the County violated her right under the FMLA to be restored to employment upon her doctor's certification alone.

The Court of Appeal held that under the FMLA, the employer must accept the employee's physician's certification for reinstatement.  However, after reinstatement, the FMLA protections no longer apply.  At that time, the employer may require an additional fitness for duty evaluation even if it is based on conduct occurring before the FMLA leave.  Since she had been officially reinstated to her position before the County ordered the fitness for duty evaluation, the County could legally order the evaluation.