In 2008, a citizen filed a complaint against San Francisco police officer Morgado. The office of citizen complaints investigated and recommended the Chief impose discipline. The Chief agreed and submitted a complaint against the officer to the City’s police commission. After a full evidentiary hearing which the officer participated in, the Commission decided to impose termination. The officer sued the City in Morgado v. City and County of San Francisco alleging that the City violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) by failing to give him an administrative appeal of the final termination. The trial court agreed with the officer and issued an injunction vacating the termination until he had been provided the opportunity for an administrative appeal of the termination decision. The City appealed.
On appeal, the City argued that the evidentiary hearing at the Commission level effectively served as an administrative appeal of the Chief’s decision to discipline. By providing this evidentiary hearing, the City argued it fulfilled the purposes of the administrative appeal provision of POBR. The Court found a distinction between the Chief’s decision to recommend discipline and the termination actually imposed by the commission. The Court found that while there may be a right for an administrative appeal of an interim-step towards discipline, such as the Chief’s recommendation, ultimately this was not the relevant issue in this case.
The issue here was the ability to appeal the “final” imposition of discipline by the Commission. While the Commission’s evidentiary hearing fulfilled most of the purposes of an administrative appeal, the Commission’s processes ended when it made the final determination to impose discipline. The Court ruled the City should have provided an additional opportunity for independent re-examination of the imposition of termination. The Court stated that such an administrative appeal does not require the same full-scale evidentiary hearing, but merely the re-examination by someone not involved in the initial determination who will make written factual findings.
The City argued alternatively that the administrative appeal provision of POBR was unconstitutional because it restricted the constitutionally granted “plenary authority” of the City over the removal of its officers. The Court found no constitutional conflict, noting POBR constituted only a slight impingement. POBR did not proscribe reasons an officer could be terminated, rather it sets forth minimal procedural rights. The court upheld the Constitutionality of POBR finding it was narrowly tailored to the purpose of promoting labor relations and created no substantive restrictions on the City’s ability to terminate employees. The Court of Appeal upheld the injunction and affirmed the trial court’s decision.
Showing posts with label termination. Show all posts
Showing posts with label termination. Show all posts
Wednesday, July 12, 2017
Saturday, March 18, 2017
Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy
In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.
Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.
The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.
Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.
The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.
Wednesday, February 1, 2017
Police Department Social Media Policy Found Unconstitutional
Liverman v. City of Petersburg (2016) 844 F.3d 400, involved two police officers who were disciplined based on two posts they made on Facebook. The two officers made posts that were critical of the administration’s practice of promoting inexperienced police officers into management positions. The City’s policy prohibited employees from: 1) making comments that would reflect poorly upon the Department or the City and 2) making negative comments about the operations of the Department. The first policy attempted to qualify itself by essentially stating that the First Amendment would still be observed and officers could comment on issues of general or public concern so long as those comments did not interfere with working relationships, efficient work flow, or undermine public confidence in the Officers.
The comments were purportedly divisive within the department and some patrol officers sought transfers away from the two officers. The two officers were given an oral reprimand and six months probation, but were told that the discipline would not affect their eligibility for promotion. However, several weeks later, a department chief changed the qualifications for promotion such that officers on probation were prohibited from promoting. When the two officers sent notice of their intent to challenge the disciplinary action, they were immediately subjected to several additional investigations which would have resulted in termination. One of the officers retired before he could be terminated.
The two officers contested the social media policy in civil court arguing that the policy violated the First Amendment, and thus, their discipline and the subsequent retaliation should be overturned. The Court recited First Amendment law stating that public employees generally do not lose their rights to speak on matters of public concern, but the speech must be balanced against the interest of the state in promoting the efficiency of the public services it provides. The Court found that the social media policy at issue explicitly restricted speech criticizing the department.
The Court found it significant that the officers chose Facebook as their forum of choice which the court compared to writing into a newspaper's opinion section. By choosing Facebook, they were clearly showing an intention to communicate their concerns to the public, outside of the employment context. The Department did not establish a significant enough reason other than general concerns of divisiveness as to why such speech should be restricted. The “negative comments” policy did not contain the qualification which would permit comment on matters of public concern and was thus, unconstitutionally overbroad. Accordingly, the discipline against the employees was overturned and the Chief who imposed the discipline was denied qualified immunity because the law in this area was well-established.
Monday, January 16, 2017
Court Allows Officer's Retaliation Lawsuit to Proceed Over Anti-SLAPP Motion
In Armendariz v. City of Burbank, the Second Appellate District held that a Burbank Police Officer’s retaliation lawsuit against his employer could go forward, despite the City’s attempt to strike the complaint on anti-SLAPP grounds. The Burbank Officer sued his employer alleging that they had terminated him due to his outspoken criticism of the Department’s leadership decisions. The City asserted that their internal affairs investigation against the Officer was protected by the first amendment and thus, the Officer’s lawsuit should be stricken.
Specifically the Officer asserted in his complaint that he complained to his department about unlawful arrest and citation quotas being imposed on officers. He also complained repeatedly and publicly about the Chief of Police’s management of the department and new disciplinary guidelines while acting in leadership positions with the Police Officer’s Association. He also complained about the Department's decision to fill senior positions within the Department with outside officers and without complying with civil service protocols. These statements were also made to the press. Not long after these statements and complaints, the Department initiated a series of internal affairs investigations into the Officer.
The general purpose of California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute is to protect against lawsuits which are aimed at preventing or punishing protected first amendment speech. Part of this protection extends to statements made in connection with an “official proceeding authorized by law.” In recent years, cities and counties have been asserting that their internal affairs investigations are such protected proceedings. When employees sue their employers after being terminated due to an internal affairs investigation, employers often try to use anti-SLAPP to shut the lawsuit down.
In order to strike claims in a lawsuit using anti-SLAPP, a defendant must show that the claims of the plaintiff arise out of protected activity. Once demonstrated, the plaintiff may only continue its case if it can establish that its claims have minimal merit. In Armendariz, the court made clear that anti-SLAPP can only be used to strike the individual claims to which the protection applies; it does not destroy the entire complaint if it contains other claims.
In this case, the court decided that the Officer’s claims of retaliation did contain allegations relating to protected activity (the internal affairs investigation). Thus, statements or writings generated in connection with the investigation were protected activity within the meaning of the anti-SLAPP statute. However, the Officer was able to establish that his claims had at least minimal merit and likelihood of success. This was due partly to the City’s almost complete failure on appeal to address the Officer’s arguments and evidence submitted, offering only a single paragraph of bare argument in response to over 220 pages of evidence.
The City offered several other token defenses such as failure to exhaust administrative remedies, governmental immunity, and litigation privilege, all of which were denied. Governmental immunity did not apply because while a government entity is protected from vicarious liability from its employee's actions, this protection does not apply when the Officer is seeking to hold the City directly responsible for its violations of the law. Litigation privilege, which precludes liability arising from a publication made in a judicial proceeding, did not apply because the Officer’s claims arose out of the City’s actions of termination, and not necessarily from its statements during the IA process.
Accordingly, the court allowed the Officer’s lawsuit to go forward and permitted him to recover his costs on appeal. Although the officer's suit survived the anti-SLAPP motion, this case also illustrates the difficulties presented by the anti-SLAPP statute when challenging adverse employment actions arising from internal affairs investigations.
Specifically the Officer asserted in his complaint that he complained to his department about unlawful arrest and citation quotas being imposed on officers. He also complained repeatedly and publicly about the Chief of Police’s management of the department and new disciplinary guidelines while acting in leadership positions with the Police Officer’s Association. He also complained about the Department's decision to fill senior positions within the Department with outside officers and without complying with civil service protocols. These statements were also made to the press. Not long after these statements and complaints, the Department initiated a series of internal affairs investigations into the Officer.
The general purpose of California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute is to protect against lawsuits which are aimed at preventing or punishing protected first amendment speech. Part of this protection extends to statements made in connection with an “official proceeding authorized by law.” In recent years, cities and counties have been asserting that their internal affairs investigations are such protected proceedings. When employees sue their employers after being terminated due to an internal affairs investigation, employers often try to use anti-SLAPP to shut the lawsuit down.
In order to strike claims in a lawsuit using anti-SLAPP, a defendant must show that the claims of the plaintiff arise out of protected activity. Once demonstrated, the plaintiff may only continue its case if it can establish that its claims have minimal merit. In Armendariz, the court made clear that anti-SLAPP can only be used to strike the individual claims to which the protection applies; it does not destroy the entire complaint if it contains other claims.
In this case, the court decided that the Officer’s claims of retaliation did contain allegations relating to protected activity (the internal affairs investigation). Thus, statements or writings generated in connection with the investigation were protected activity within the meaning of the anti-SLAPP statute. However, the Officer was able to establish that his claims had at least minimal merit and likelihood of success. This was due partly to the City’s almost complete failure on appeal to address the Officer’s arguments and evidence submitted, offering only a single paragraph of bare argument in response to over 220 pages of evidence.
The City offered several other token defenses such as failure to exhaust administrative remedies, governmental immunity, and litigation privilege, all of which were denied. Governmental immunity did not apply because while a government entity is protected from vicarious liability from its employee's actions, this protection does not apply when the Officer is seeking to hold the City directly responsible for its violations of the law. Litigation privilege, which precludes liability arising from a publication made in a judicial proceeding, did not apply because the Officer’s claims arose out of the City’s actions of termination, and not necessarily from its statements during the IA process.
Accordingly, the court allowed the Officer’s lawsuit to go forward and permitted him to recover his costs on appeal. Although the officer's suit survived the anti-SLAPP motion, this case also illustrates the difficulties presented by the anti-SLAPP statute when challenging adverse employment actions arising from internal affairs investigations.
Monday, July 14, 2014
9th Circuit: LAPD Retaliated Against Officer for FLSA Testimony
In Avila v. LAPD, the Ninth Circuit ruled the Los Angeles Police Department violated the FLSA’s anti-retaliation clause when it fired a “model” officer after testifying against the department in a fellow officer’s FLSA case.
The FLSA anti-retaliation provision protects employees from discharge or discrimination based on giving testimony in any FLSA proceeding.
LAPD terminated Avila after he testified in a FLSA lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila testified he periodically worked through his lunch break and did not claim overtime because it was a common practice in the department. After an investigation, the LAPD Board of Rights recommended termination. Avila had no record of discipline.
The court emphasized the sole issue before the jury was whether LAPD’s reason for firing Officer Avila was pretext, not whether LAPD could fire the officer for failing to report overtime or whether Avila’s testimony could be used in an administrative hearing. Thus, the court determined LAPD could not support any viable argument that Avila would not have been terminated if he had not testified at Maciel’s trial. However, the court stated it would not decide whether the use of an employee’s trial testimony was entirely forbidden in an adverse action where the employer has other evidence of the alleged infraction.
Ultimately, the decision confirms the protection afforded to public employees who enforce the FLSA. Avila was awarded $579,400 in attorney fees and $50,000 in liquidated damages.
LAPD terminated Avila after he testified in a FLSA lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila testified he periodically worked through his lunch break and did not claim overtime because it was a common practice in the department. After an investigation, the LAPD Board of Rights recommended termination. Avila had no record of discipline.
The court emphasized the sole issue before the jury was whether LAPD’s reason for firing Officer Avila was pretext, not whether LAPD could fire the officer for failing to report overtime or whether Avila’s testimony could be used in an administrative hearing. Thus, the court determined LAPD could not support any viable argument that Avila would not have been terminated if he had not testified at Maciel’s trial. However, the court stated it would not decide whether the use of an employee’s trial testimony was entirely forbidden in an adverse action where the employer has other evidence of the alleged infraction.
Ultimately, the decision confirms the protection afforded to public employees who enforce the FLSA. Avila was awarded $579,400 in attorney fees and $50,000 in liquidated damages.
Friday, June 20, 2014
US Supreme Court: Public Employee Testimony Protected By First Amendment
On June 19, 2014, in Lane v. Franks, the U.S. Supreme Court ruled an employee’s testimony was protected by the First Amendment because it was a citizen’s speech on a matter of public concern.
Edward Lane directed a program for underprivileged youth at Central Alabama Community College. Lane audited the program’s expenses and found an employee, Suzanne Schmitz, had not been reporting for work. Lane terminated Schmitz’ employment and testified against her in federal court. Schmitz was sentenced to 30 months on charges of mail fraud and theft.
After the trial, the college’s president, Franks, fired 29 employees, including Lane. Franks claimed the action was an attempt to fix the college’s budget. He then rehired all but two of the employees. Franks did not rehire Lane.
In response, Lane filed a civil rights lawsuit. Lane claimed Franks violated the First Amendment by firing him in retaliation for testifying against Schmitz. If a public employee speaks in the course of their ordinary duties, the employee is not speaking as a citizen for First Amendment purposes. But in this case, the U.S. Supreme Court unanimously ruled Lane’s sworn testimony was outside the scope of his normal duties and entitled to First Amendment protection.
The Court also ruled the testimony was on a matter of public concern. If a public employee speaks on a matter of public concern, the government must have adequate justification for treating the employee differently. Whether speech is a matter of public concern turns on the content, form, and context of the speech.
Here, the Court held corruption in a public program and misuse of state funds are matters of significant public concern. Speech by public employees related to their employment holds special value because those employees gain knowledge of matters of public concern through their employment.
Because the Court ruled the testimony was a public concern, it then decided if the college lacked adequate justification for firing Lane. The college did not assert or demonstrate any government interest for their treatment of Lane. Therefore, the Court reversed and remanded for further proceedings.
Edward Lane directed a program for underprivileged youth at Central Alabama Community College. Lane audited the program’s expenses and found an employee, Suzanne Schmitz, had not been reporting for work. Lane terminated Schmitz’ employment and testified against her in federal court. Schmitz was sentenced to 30 months on charges of mail fraud and theft.
After the trial, the college’s president, Franks, fired 29 employees, including Lane. Franks claimed the action was an attempt to fix the college’s budget. He then rehired all but two of the employees. Franks did not rehire Lane.
In response, Lane filed a civil rights lawsuit. Lane claimed Franks violated the First Amendment by firing him in retaliation for testifying against Schmitz. If a public employee speaks in the course of their ordinary duties, the employee is not speaking as a citizen for First Amendment purposes. But in this case, the U.S. Supreme Court unanimously ruled Lane’s sworn testimony was outside the scope of his normal duties and entitled to First Amendment protection.
The Court also ruled the testimony was on a matter of public concern. If a public employee speaks on a matter of public concern, the government must have adequate justification for treating the employee differently. Whether speech is a matter of public concern turns on the content, form, and context of the speech.
Here, the Court held corruption in a public program and misuse of state funds are matters of significant public concern. Speech by public employees related to their employment holds special value because those employees gain knowledge of matters of public concern through their employment.
Because the Court ruled the testimony was a public concern, it then decided if the college lacked adequate justification for firing Lane. The college did not assert or demonstrate any government interest for their treatment of Lane. Therefore, the Court reversed and remanded for further proceedings.
Wednesday, November 20, 2013
Court of Appeal: POBR Violation Voids Dishonesty Charge
In Ruiz v. City of Bell Gardens (2013) Case No. B244395, the Court of Appeal affirmed a superior court ruling voiding a dishonesty allegation because of a POBR violation. Officer Ruiz was on administrative leave pending the outcome of an IA investigation. When his department put him on administrative leave, it ordered him not to enter any city property not open to the general public. Then, a lieutenant came across him in police trailer not open to the general public and asked him about why he was there. The court found that the lieutenant's questions constituted an interrogation under POBR. Since the department did not give him notice of the interrogation in advance, it violated POBR and Officer Ruiz statements were suppressed. Without his statements, there was no basis to support the dishonesty allegation.
Monday, October 14, 2013
Governor Vetoes Union Rep-Member Privilege, Signs Bills on Brady List Protections, Bargaining, Release Time
The Governor took action on several bills affecting public safety labor rights. The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members. In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations." The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.
The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.
The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list. The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets. PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.
The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table. The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.
The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.
The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.
The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list. The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets. PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.
The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table. The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.
The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.
Tuesday, August 27, 2013
Court Clarifies Peace Officers' First Amendment Rights
In Dahlia v. Rodriguez the Ninth Circuit Court of Appeals expanded first amendment protections for peace officers. The court found speech made outside of the chain of command is protected by the First Amendment because it is made in an officer's capacity as private citizen. The case comes after a number of cases limiting public employees' free speech on topics related to their employment.
Officer Dahlia witnessed complained about alleged inappropriate behavior by other fellow officer to his lieutenant who allegedly threatened him, and other officers to keep quiet about the matter. Dahlia alleged he was warned not to be “a cheese eating rat”. Shortly afterward, he was interviewed in an IA investigation and reported these incidents to his Association president. He also repeated his concerns to a different police department investigating the same incident. Then, the Department put Dahlia w on administrative leave pending discipline.
The court examined each of Dahlia’s actions to decide whether they were protected by the First Amendment or employee speech that is not protected. The Court said reporting to his supervisor was a part of his job duties as a detective investigating a crime and not protected by the First Amendment. The Court said the IA interview was more complicated because if Dahlia disobeyed orders by going to the IA interview, then he acted as a private citizen. The Court said he acted in his capacity as a private citizen when he spoke to his Association president and when he spoke to a different police department.
The court also found Dahlia suffered an adverse employment action as a result of his speech. The threats he received from his supervisor to put him in jail were sufficient to be considered an adverse employment action. Plus, in this case, the administrative leave was considered a punitive action. The court found that loss of overtime, promotional, and experience opportunities made administrative leave an adverse employment action. As a result, the Court found the adverse action would violate the First Amendment.
Officer Dahlia witnessed complained about alleged inappropriate behavior by other fellow officer to his lieutenant who allegedly threatened him, and other officers to keep quiet about the matter. Dahlia alleged he was warned not to be “a cheese eating rat”. Shortly afterward, he was interviewed in an IA investigation and reported these incidents to his Association president. He also repeated his concerns to a different police department investigating the same incident. Then, the Department put Dahlia w on administrative leave pending discipline.
The court examined each of Dahlia’s actions to decide whether they were protected by the First Amendment or employee speech that is not protected. The Court said reporting to his supervisor was a part of his job duties as a detective investigating a crime and not protected by the First Amendment. The Court said the IA interview was more complicated because if Dahlia disobeyed orders by going to the IA interview, then he acted as a private citizen. The Court said he acted in his capacity as a private citizen when he spoke to his Association president and when he spoke to a different police department.
The court also found Dahlia suffered an adverse employment action as a result of his speech. The threats he received from his supervisor to put him in jail were sufficient to be considered an adverse employment action. Plus, in this case, the administrative leave was considered a punitive action. The court found that loss of overtime, promotional, and experience opportunities made administrative leave an adverse employment action. As a result, the Court found the adverse action would violate the First Amendment.
Friday, May 24, 2013
Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer
In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Thursday, May 9, 2013
California Court Uphold Employees' Right To Vacation Pay On Termination
California Labor Code section 227.3 requires employers immediately pay a terminated employee for all his vested vacation time. In Howard Choate et al., v. Celite Corporation (May 2, 2013) B239160, the Court of Appeal decided the right provided in section 227.3 can only be waived if a negotiated collective bargaining agreement clearly and unmistakably waves that right.
Under their collective bargaining agreement, Plaintiffs in Howard earned their vacation based on hours worked the previous year and there was no waiver of section 227.3. However here was no past practice of paying out next year’s vacation time. Until the lawsuit, neither the terminated employees nor their union had objected to this practice. The court found the parties' past practice of not enforcing the vacation rule did not count as a clear and unmistakable waver of section 227.3. Therefore, the Court said the Plaintiffs were entitled to be paid for time earned. However, the court did not grant special penalties to Plaintiffs because it said the employer did not act “willfully”.
Under their collective bargaining agreement, Plaintiffs in Howard earned their vacation based on hours worked the previous year and there was no waiver of section 227.3. However here was no past practice of paying out next year’s vacation time. Until the lawsuit, neither the terminated employees nor their union had objected to this practice. The court found the parties' past practice of not enforcing the vacation rule did not count as a clear and unmistakable waver of section 227.3. Therefore, the Court said the Plaintiffs were entitled to be paid for time earned. However, the court did not grant special penalties to Plaintiffs because it said the employer did not act “willfully”.
Wednesday, April 17, 2013
Court of Appeal: City Violated Police Officer's Due Process Rights By Using Same Law Firm to Arbitrate, Advise on Discipline
In Glenn Sabey v. City of Pomona (April 16, 2013) B239916, the Court of Appeal ruled it violates due process to have partners in the same law firm act as advocate seeking termination and adviser to the City, overturning a police officer's termination. The case stems from an advisory arbitration case against a police officer. Unlike binding arbitration, advisory arbitration lets the employer reject the arbitration decision. Here, two attorneys from Liebert Cassidy Whitmore acted as the attorney advocating for termination at the arbitration and legal adviser to the city council about whether to honor or reject the arbitrator's recommendation
The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process." The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved." The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias." The Court noted different rules apply to government lawyers.
As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement." But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”
The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process." The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved." The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias." The Court noted different rules apply to government lawyers.
As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement." But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”
Friday, March 8, 2013
Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others
Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off. The interest rate is set at 7% or 10%, depending on the type of case. Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.
Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account." That rate has been less than 1% for the past three years. As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments. Cities win, employees lose. Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.
Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account." That rate has been less than 1% for the past three years. As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments. Cities win, employees lose. Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.
Monday, February 25, 2013
Court of Appeal Increases Protections for Pregnant Workers
In Sanchez v. Swissport, Inc. (February 21, 2013) 2013 WL 635266, the Court of Appeal ruled employees fired for not returning to work after a pregnancy can still sue for pregnancy discrimination even though the employee exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL).
In this case of first impression, the court explained that an employee who exhausts all of her statutory pregnancy disability leave may still state a claim for employment discrimination under FEHA because the remedies of the PDLL are meant to “augment, rather than supplant, those set forth elsewhere in the FEHA.” The statutory leave of four months available under the PDLL is “in addition to” the remedies set forth in FEHA governing pregnancy, childbirth, and pregnancy-related medical conditions. Compliance with the PDLL, thus, does not relieve an employer of its obligations under FEHA, including the obligation to provide a reasonable accommodation (which may in some cases exceed four months) to an employee disabled by pregnancy, so long as the accommodation does not impose an undue hardship on the employer.
In this case, the employee said Swissport terminated her because she was pregnant, was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and terminated her because she sought such reasonable accommodations for her disability. The court concluded that these allegations were sufficient to state claims for sex and disability discrimination and retaliation in violation of FEHA.
In this case of first impression, the court explained that an employee who exhausts all of her statutory pregnancy disability leave may still state a claim for employment discrimination under FEHA because the remedies of the PDLL are meant to “augment, rather than supplant, those set forth elsewhere in the FEHA.” The statutory leave of four months available under the PDLL is “in addition to” the remedies set forth in FEHA governing pregnancy, childbirth, and pregnancy-related medical conditions. Compliance with the PDLL, thus, does not relieve an employer of its obligations under FEHA, including the obligation to provide a reasonable accommodation (which may in some cases exceed four months) to an employee disabled by pregnancy, so long as the accommodation does not impose an undue hardship on the employer.
In this case, the employee said Swissport terminated her because she was pregnant, was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and terminated her because she sought such reasonable accommodations for her disability. The court concluded that these allegations were sufficient to state claims for sex and disability discrimination and retaliation in violation of FEHA.
Thursday, January 5, 2012
Court of Appeal: Retirement Does Not Void Right to Arbitration
In Service Employees Intern. Union, Local 1021 v. San Joaquin County (3rd DCA, C066861) December 28, 2011, 2011 WL 6812543, the Court of Appeal found an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU.
The case arose after an employee was terminated from his job as a craft worker for allegedly stealing recyclable material. He then invoked a provision of the MOU and requested arbitration of the decision to terminate him. The employee also filed for retirement benefits. The County denied the employee’s request for arbitration, and the trial court found for the County by denying the union’s petition to compel arbitration.
On appeal, the County argued once the employee had retired from his job, he was no longer “an employee” under the MOU and had forfeited any rights to arbitration under the MOU. The Court disagreed, holding an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU. The Court found the employee appropriately invoked his right to arbitration and accordingly reversed the lower court’s denial of the petition to compel arbitration.
The case arose after an employee was terminated from his job as a craft worker for allegedly stealing recyclable material. He then invoked a provision of the MOU and requested arbitration of the decision to terminate him. The employee also filed for retirement benefits. The County denied the employee’s request for arbitration, and the trial court found for the County by denying the union’s petition to compel arbitration.
On appeal, the County argued once the employee had retired from his job, he was no longer “an employee” under the MOU and had forfeited any rights to arbitration under the MOU. The Court disagreed, holding an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU. The Court found the employee appropriately invoked his right to arbitration and accordingly reversed the lower court’s denial of the petition to compel arbitration.
Tuesday, January 3, 2012
Court of Appeal Finds Police Chief's Termination Violated POBR
In Robinson v. City of Chowchilla, (5th DCA F059608) December 23, 2011, 2011 WL 6450602, the Court of Appeal held the city violated POBR when it terminated Robinson, the city's police chief, without the requisite notice, statement of reasons, and opportunity for an administrative appeal. Following termination Robinson filed a petition for a writ of mandate claiming violations of POBR. POBR has special provisions for chiefs of police. Specifically, Government Code section 3304(c) provides:
“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”
The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.
The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.
“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”
The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.
The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.
Monday, November 14, 2011
Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay
In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff backpay because the County denied him a pre-termination administrative hearing. The Court also voided his purported waiver of POBR rights.
Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election. However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.
The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.
The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.
Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election. However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.
The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.
The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.
Monday, October 31, 2011
Court of Appeal Denies CalPERS Credit for Lump Sum Back Pay
In Molina v. Board of Administration (2011) 2011 WL 4491809, the Second District Court of Appeal rejected an employee's argument that back pay should be counted toward service credit under the Public Employee's Retirement Law (PERL). After Molina was terminated from his job with the City of Oxnard, he filed an action for wrongful termination and subsequently settled for a lump sum. Following the settlement, Molina requested CalPERS increase his pension entitlement, characterizing the settlement amount as “back pay.” However, CalPERS refused to recognize the settlement amount as earnable compensation and denied his request.
The Court held the settlement amount could not count towards the employee’s “compensation earnable” because it did not meet PERL’s requirements to be “payrate” or “special compensation.”
Payrate must “either: (1) [be] paid to similarly situated employees; or (2) [be] paid in accordance with a ‘publicly available pay schedule for services rendered on a full time basis during normal working hours.’ (Gov. Code, § 20636, subd. (b)(1).)”
To qualify as special compensation, one must show the pay “(1) was available to similarly situated employees under a labor policy or federal requirement; or (2) was determined by the CalPERS Board to have been available to other, similarly situated employees as required by PERL. (Gov.Code, § 20636, subd. (c)(2); 2 Calif. Code of Regs., § 571(b)-(d).”
The Court noted CalPERS had advised Molina and the city "that a portion of the settlement payment could potentially be eligible for inclusion in Molina's pension, but only if Molina were reinstated for a full year in a valid position under a legitimate salary based on a salary schedule." That never happened. As a result, the Court rejected Molina’s appeal, leaving his existing pension calculation unaltered.
The Court held the settlement amount could not count towards the employee’s “compensation earnable” because it did not meet PERL’s requirements to be “payrate” or “special compensation.”
Payrate must “either: (1) [be] paid to similarly situated employees; or (2) [be] paid in accordance with a ‘publicly available pay schedule for services rendered on a full time basis during normal working hours.’ (Gov. Code, § 20636, subd. (b)(1).)”
To qualify as special compensation, one must show the pay “(1) was available to similarly situated employees under a labor policy or federal requirement; or (2) was determined by the CalPERS Board to have been available to other, similarly situated employees as required by PERL. (Gov.Code, § 20636, subd. (c)(2); 2 Calif. Code of Regs., § 571(b)-(d).”
The Court noted CalPERS had advised Molina and the city "that a portion of the settlement payment could potentially be eligible for inclusion in Molina's pension, but only if Molina were reinstated for a full year in a valid position under a legitimate salary based on a salary schedule." That never happened. As a result, the Court rejected Molina’s appeal, leaving his existing pension calculation unaltered.
Monday, October 17, 2011
Court of Appeal Permits Waiver of POBR Rights In Limited Circumstances
In Lanigan v. City of Los Angeles (Cal. Ct. App., Oct. 4, 2011) 2011 WL 4552533, the Court of Appeal for the Second District overturned the trial court, finding POBR protections can be waived in a minority of discipline cases. The case concerned a Los Angeles police officer facing several serious discipline charges resulting from his treatment of an officer from another department. The Department proposed termination and the officer entered into a detailed settlement agreement under which he was reinstated. He also agreed to specific future discipline in the event of additional disciplinary charges being filed against him for harassing or failing to cooperate with officers of an outside agency, and agreed to waive several of his rights under POBR.
Within a year, the officer again faced discipline charges for providing false information and failing to cooperate with an LASD officer. In response, the Department processed his resignation pursuant to the settlement agreement. He petitioned for peremptory writ of mandate to obtain judicial review of the LAPD’s decision. The lower court issued a writ ordering the city to set aside its acceptance of the officer's resignation and reinstate him to his position.
The Court of Appeal overruled the trial court, but acknowledged the provisions of POBR are not subject to a blanket waiver because POBR was established for a public purpose. Instead, the Court looked to the California Supreme Court's ruling in County of Riverside v. Superior Court (2002) 27 Cal.4th 793 and concluded a waiver of POBR rights could be permitted in certain unusual circumstances. In this case, the Court noted the officer did not waive all of his POBR rights and his waiver applied to discipline for a specific type of alleged misconduct. The Court also emphasized the original settlement was in lieu of almost certain termination.
This case primarily concerned statutory rights. Other pre-termination rights have a federal constitutional dimension that presents additional barriers to waiver. In Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, the court found a public employee had not waiver his Skelly rights. The court noted "federal courts 'indulge every reasonable presumption against waiver of fundamental constitutional rights' and 'do not presume acquiescence in the loss of fundamental rights.'" The court therefore concluded "a waiver [of the right to a pre-termination hearing] should not be implied and should not be lightly found."
Within a year, the officer again faced discipline charges for providing false information and failing to cooperate with an LASD officer. In response, the Department processed his resignation pursuant to the settlement agreement. He petitioned for peremptory writ of mandate to obtain judicial review of the LAPD’s decision. The lower court issued a writ ordering the city to set aside its acceptance of the officer's resignation and reinstate him to his position.
The Court of Appeal overruled the trial court, but acknowledged the provisions of POBR are not subject to a blanket waiver because POBR was established for a public purpose. Instead, the Court looked to the California Supreme Court's ruling in County of Riverside v. Superior Court (2002) 27 Cal.4th 793 and concluded a waiver of POBR rights could be permitted in certain unusual circumstances. In this case, the Court noted the officer did not waive all of his POBR rights and his waiver applied to discipline for a specific type of alleged misconduct. The Court also emphasized the original settlement was in lieu of almost certain termination.
This case primarily concerned statutory rights. Other pre-termination rights have a federal constitutional dimension that presents additional barriers to waiver. In Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, the court found a public employee had not waiver his Skelly rights. The court noted "federal courts 'indulge every reasonable presumption against waiver of fundamental constitutional rights' and 'do not presume acquiescence in the loss of fundamental rights.'" The court therefore concluded "a waiver [of the right to a pre-termination hearing] should not be implied and should not be lightly found."
Friday, September 30, 2011
Court of Appeal: Police Chief Qualified for Disability Retirement Despite Termination Because of Equitable Exception
In Zimmon v. City of San Bernardino (Cal. Ct. App., Sept. 16, 2011, E050314) 2011 WL 4337123, the Court granted former San Bernardino Police Chief Garrett Zimmon disability retirement by applying an equitable exception stating that an employee terminated prior to the approval of his disability retirement is still eligible for benefits if the employee's application would have been granted but for the termination.
In the summer of 2002, Zimmon was diagnosed with a heart condition. Later, the city’s mayor openly considered terminating Zimmon so her successor could select a new chief. Zimmon then filed an application for disability retirement and was terminated the following day. A hearing officer ruled Zimmon had suffered a heart-related injury. However, the officer denied Zimmon’s petition for disability retirement. After an internal appeal, the city ruled Zimmon had “proved his disability and incapacity for performance” but he was not eligible for benefits because his termination took place before his right to a disability retirement matured. The superior court affirmed this decision, and the case was appealed to the Fourth District Court of Appeal.
The Appellate Court reversed, holding Zimmon’s application for disability retirement would have been approved had he not been terminated. The Court relied on an equitable exception which states “an employee who has been terminated, prior to the pension board approving his disability retirement application, may still be ‘eligible to retire for disability’ if there is evidence that the employee's application would have been granted.” (Id.) The Court further found Zimmon had already “proved his disability and incapacity for performance of duty ‘on the basis of competent medical opinion.” (Id.)
The Court in Zimmon relied heavily on two Court of Appeal cases brought by firefighters denied disability retirement. These cases helped define what it means to be eligible to retire for disability when an employee is terminated. In Haywood v American River Fire Protection Dist., a firefighter filed an application for disability retirement benefits based on stress caused by the discipline process. (Haywood v American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.) The Court of Appeal rejected his claims finding eligibility to retire for disability “meant that the person was an active employee, who would be able to return to his job if he overcame his disability.” (Haywood, supra, 67 Cal.App.4th at p. 1307.)
In Smith v. City of Napa, a firefighter with back injuries was dismissed for failing certification tests and filed for disability retirement the same day. (Smith v. City of Napa (2004) 120 Cal.App.4th 194.) The Court of Appeal rejected his claims but noted equitable principles could provide grounds to find that an employee’s disability rights mature and survive a dismissal for cause if the medical evidence supporting those rights is definitive. (Smith, supra, 120 Cal.App.4th at pp. 206–207.)
These two cases laid the groundwork for a case such as Zimmon, in which the employee would clearly have received disability retirement but for his termination from employment.
In the summer of 2002, Zimmon was diagnosed with a heart condition. Later, the city’s mayor openly considered terminating Zimmon so her successor could select a new chief. Zimmon then filed an application for disability retirement and was terminated the following day. A hearing officer ruled Zimmon had suffered a heart-related injury. However, the officer denied Zimmon’s petition for disability retirement. After an internal appeal, the city ruled Zimmon had “proved his disability and incapacity for performance” but he was not eligible for benefits because his termination took place before his right to a disability retirement matured. The superior court affirmed this decision, and the case was appealed to the Fourth District Court of Appeal.
The Appellate Court reversed, holding Zimmon’s application for disability retirement would have been approved had he not been terminated. The Court relied on an equitable exception which states “an employee who has been terminated, prior to the pension board approving his disability retirement application, may still be ‘eligible to retire for disability’ if there is evidence that the employee's application would have been granted.” (Id.) The Court further found Zimmon had already “proved his disability and incapacity for performance of duty ‘on the basis of competent medical opinion.” (Id.)
The Court in Zimmon relied heavily on two Court of Appeal cases brought by firefighters denied disability retirement. These cases helped define what it means to be eligible to retire for disability when an employee is terminated. In Haywood v American River Fire Protection Dist., a firefighter filed an application for disability retirement benefits based on stress caused by the discipline process. (Haywood v American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.) The Court of Appeal rejected his claims finding eligibility to retire for disability “meant that the person was an active employee, who would be able to return to his job if he overcame his disability.” (Haywood, supra, 67 Cal.App.4th at p. 1307.)
In Smith v. City of Napa, a firefighter with back injuries was dismissed for failing certification tests and filed for disability retirement the same day. (Smith v. City of Napa (2004) 120 Cal.App.4th 194.) The Court of Appeal rejected his claims but noted equitable principles could provide grounds to find that an employee’s disability rights mature and survive a dismissal for cause if the medical evidence supporting those rights is definitive. (Smith, supra, 120 Cal.App.4th at pp. 206–207.)
These two cases laid the groundwork for a case such as Zimmon, in which the employee would clearly have received disability retirement but for his termination from employment.
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