Briefing Room
firm victories
LCW Partner Morin Jacob and
Associate Attorney Caroline Cohen Prevail on Hostile Work Environment Claim.
A police officer accused his former supervisor of having an extramarital affair with the police officer’s then-wife, when the officer and his wife were both employed by the same police department. The officer also alleged that he was passed over for a promotion because of sexual favoritism to female employees. Rumors circulated about the affair and the officer took a leave of absence. When the officer returned to work, he was transferred to a different division, away from his wife, and was not allowed to carry his off-duty weapon. Ultimately, the officer retired due to stress and anxiety and what he perceived to be a hostile work environment. The officer then sued the department.
The Superior Court gave the officer three attempts to state his case, but Jacob and Cohen proved that the officer could not plead facts sufficient to support either: that the alleged harassment was severe or pervasive; or his sexual favoritism theory of workplace harassment. They also convinced the Court that the officer could not show any protected activity to support his retaliation claim. They also won the dismissal of the officer’s claims for failure to prevent harassment, and intentional infliction of emotional distress. The court dismissed the action against the city with prejudice.
LCW Partner Rick Bolanos and Associate Attorney Phil Bui Convince Civil Service Board to Uphold Police Sergeant Termination.
A police sergeant’s patrol vehicle was damaged during his shift. The sergeant denied knowing how the damage occurred. Following the department’s internal investigation, the police chief issued a notice of intent to terminate the sergeant for: violating the department’s ethics and conduct policies; causing the damage to the vehicle; failing to report the damage to his supervisor; attempting to conceal the damage; and dishonesty concerning the damage. The sergeant appealed the discipline to the civil service board.
The civil service board upheld the termination despite the sergeant’s arguments that: he did not know how the patrol car was damaged; he only noticed the damage when he was washing the car; the damage was insufficient to prove that he backed the patrol car into a pole; and because he did not know the cause of the damage to the patrol car, he was not dishonest in denying he caused the damage.
Bolanos and Bui presented evidence establishing the sergeant’s dishonesty and non-compliance with the department’s policies. The evidence showed that the sergeant washed the car in the dark; moved another patrol vehicle so he could park his damaged patrol vehicle in an area away from the security cameras; and looked at the damaged areas of the patrol car several times during his shift. Following its review of the record, the civil service board upheld the city manager’s determination that the officer’s misconduct established just and sufficient cause for termination.
Discipline
Police Officer Termination Upheld Despite Arbitrator’s Contrary Advisory Recommendation.
Sergio Ramirez was a police officer with the City of Indio Police Department. Ramirez was charged with rape and sexual assault of his 18-year-old niece. The City placed Ramirez on administrative leave and initiated an internal affairs investigation. A jury later acquitted Ramirez of all criminal charges.
The City’s IA investigation resulted in two conflicting reports. The sergeant who conducted the initial investigation concluded that Ramirez had violated multiple Department policies, including misrepresenting material facts, dishonest or disgraceful off-duty conduct affecting the officer’s relationship with the Department, and conduct reflecting unfavorably on the Department. After further investigation, a different sergeant concluded that the policy violations were “not sustained.”
The Chief issued a Notice of Intent to Terminate Ramirez and conducted a pre-disciplinary Skelly conference in September. After considering all facts, the Chief issued a Notice of Termination. The Notice explained that the Department would terminate Ramirez’s employment based on his admission that he drove under the influence of alcohol alone, but the preponderance of the evidence also established that he was dishonest and showed poor judgment that embarrassed the City and the Department. Ramirez appealed the Chief’s decision through the administrative appeal process outlined in the MOU between the City and the Indio POA.
The mutually agreed upon arbitrator conducted a three-day virtual evidentiary hearing. After the hearing, the arbitrator recommended Ramirez's reinstatement with full back pay and benefits. The arbitrator opined that the City failed to carry its burden to establish that: Ramirez drove under the influence of alcohol; reset his Department-issued cell phone with an intent to destroy evidence; lied about his actions; and made inconsistent statements during his IA interviews and at trial with an intent to lie or misrepresent his actions.
After reviewing the arbitrator’s advisory findings and recommendations, and all of the materials from the investigation and trial, the City Manager issued a final written decision, rejecting the arbitrator’s advisory findings and recommendation and affirming Ramirez’s termination. The City Manager cited Ramirez's poor judgment, dishonesty, and conduct unbecoming of an officer and bringing discredit and embarrassment to the City.
Ramirez petitioned the Superior Court for a writ of mandate, arguing that the City Manager should have deferred to the arbitrator's findings on the weight and credibility of the evidence. The Superior Court denied the petition, affirming the City Manager's decision. Ramirez appealed.
The California Court of Appeal affirmed the lower court. The Court held that the express language of the MOU gave the City Manager final authority to make disciplinary decisions, including the power to reject the arbitrator's advisory findings. The Court rejected both Ramirez’s argument that the City Manager was required to defer to the arbitrator’s determinations of the relevancy, weight and credibility of testimony and evidence during the hearing, and that the City Manager had to afford the advisory findings “great weight.”
The Court also found that the City Manager had conducted a thorough review of the arbitrator's recommendations and the evidence before making the final decision, as was required by the MOU, and even went further by reviewing additional relevant documents and the transcripts and providing a detailed analysis supporting his conclusion.
Finally, the Court concluded that the administrative appeal process provided Ramirez with due process, as it included notice, an opportunity to respond, and a meaningful hearing.
Ramirez v. City of Indio, 105 Cal.App.5th 939 (2024).
disability
CDCR Defeats Correctional Officer’s Disability Discrimination Claims.
Maria Miller worked as a correctional officer with the California Department of Corrections and Rehabilitation (CDCR). In 2016, she was injured at work. Miller did not return to work while she received treatment. She was placed on an unpaid leave of absence in July 2018.
In August 2018, Miller’s physician determined that she had reached maximum medical improvement and she would be subject to permanent restrictions that precluded her from lifting, pushing, or pulling items over 30 pounds; repetitive bending, twisting, or stooping; and kneeling or squatting. The essential functions of a CDCR correctional officer required many of these physical abilities.
In December 2018, Miller agreed to accept a medical demotion and placement in an alternative position as an accommodation that would permit her to return to work. CDCR identified three potential positions and offered to medically demote her to the position that had the highest salary. Miller failed to show up for two “meet and greet” orientations that CDCR scheduled for her in 2019 pertaining to this new position.
Instead, Miller told CDCR that: she had begun mental health treatment; she had filed a new worker’s compensation claim for stress; and her psychologist prohibited her from being “anywhere near CDCR” while receiving treatment. As of 2019, there was no accommodation available that would have permitted Miller to return to work. She remained employed with CDCR on an unpaid leave of absence while undergoing mental health treatment.
In 2020, Miller sued, alleging that CDCR violated the California Fair Employment and Housing Act (FEHA) by: disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and retaliation. Miller’s original complaint also included a claim for violation of Government Code section 21153, which requires
a public employer to apply for a CalPERS disability retirement on an employee’s behalf in certain situations, but Miller voluntarily dismissed that claim. CDCR filed a motion for summary judgment on the remaining claims. The trial court granted CDCR’s motion. Miller appealed.
The California Court of Appeal upheld the grant of summary judgment. As to the disability discrimination claim, the Court found that the “stay away” order Miller’s psychologist gave established that Miller could no longer perform the essential duties of her position at CDCR with or without accommodation.
Miller did not propose any reasonable accommodation during the interactive process, but in court she claimed that the CDCR could have accommodated her by offering to file an application for CalPERS disability retirement on her behalf. The Court of Appeal found that a reasonable accommodation is limited to efforts that facilitate an employee’s return to work. The purpose of a disability retirement is to separate an employee from work. Although the CalPERS retirement law at Government Code section 21153 requires an employer to file for a disability retirement on an employee’s behalf in some circumstances, Miller had voluntarily dismissed her section 21153 claim. The Court said that even if CDCR wrongfully refused to apply for disability benefits on Miller’s behalf, that fact would not have created a material dispute of fact on CDCR’s motion.
Finally, the Court found that Miller’s claim for retaliation failed because there was no evidence that Miller undertook any protected activity, which is an essential element of a retaliation claim. Miller’s complaint alleged that her sole protected activity was becoming disabled. The Court found that neither the involuntary act of becoming disabled, nor the fact that Miller notified the CDCR that she had a disability, was protected activity.
Miller v. Department of Corrections and Rehabilitation, 105 Cal.App.5th 261 (2024).
Note:
Employers who are assessing how to respond to a disability discrimination claim will find many practice tips in this case.
peace officer records
Brady Principles Apply in ReSentencing Hearing.
In June 2010, the Monterey County District Attorney prosecuted Juan Nuno for multiple counts of willful, deliberate and premeditated murder, as well as other crimes. In September 2010, the trial court held a joint preliminary hearing. The district attorney presented the testimony of four police officers, including King City Police Department Officers Abraham Aguayo and Jesus Yanez. The Court held Nuno to answer on 22 charged counts, as well as an uncharged offense, and enhancement allegations. Nuno then signed a plea agreement that resulted in a 30-year prison sentence.
In February 2022, Nuno filed a petition to vacate his conviction under Penal Code section 1172.6, which applies in various circumstances including when the malice element of felony murder is implied because of a person’s participation in a crime. In June 2022, the trial court found that Nuno had made a prima facie case for relief and ordered an evidentiary hearing.
In August 2022, Nuno filed a motion for discovery of the personnel records of Officers Aguayo and Yanez. Nuno cited Brady, Pitchess, Evidence Code sections 1043 through 1046, and state and federal constitutional due process protections in support of his discovery motion. Nuno asserted he met the good cause requirements of Pitchess and the materiality standards of Brady, and that the officers’ credibility would be the main factors in determining whether Nuno committed attempted murder and the various enhancements. Nuno also sought “evidence of the officers’ custom and habit of falsifying police reports” and attached “media accounts detailing the officers’ misbehavior.”
The City and Department filed an opposition. They argued the discovery motion failed to: demonstrate good cause; show a plausible factual foundation for the release
of the confidential personnel records; and was overbroad. At the hearing, the superior court explained that it would conduct an in-camera hearing to review all potentially relevant documents that correspond to the particular requests in the Pitchess motion. Neither the court nor the parties addressed the Brady component of the motion. After the in-camera hearing, the court found some of the personnel information relevant and ordered that it be disclosed to defense counsel.
The court held an evidentiary hearing on Nuno’s section 1172.6 claim and denied the petition. In ruling on Nuno’s discovery motion, the trial court ordered disclosure of only complainant and witness names and contact information related to two incidents involving Officer Aguayo, as well as Officer Yanez’s dates of employment.
Nuno appealed; he requested the California Court of Appeal to review the trial court’s application of Pitchess standards to the discovery motion. The Court requested supplemental briefing on whether the trial court’s review should also encompass Brady principles, which require the disclosure of exculpatory evidence.
The Court outlined the relevant principles concerning section 1172.6, Pitchess, and Brady. The Court concluded that the trial court did not abuse its discretion under Pitchess principles in ordering the disclosure of only limited information regarding the officers.
The Court then addressed the novel issue of whether disclosure of information concerning the officers may have been required under Brady principles in advance of the section 1172.6 hearing. The Court ruled that a person seeking relief under section 1172.6 may obtain peace officer personnel information under Brady principles through Pitchess procedures in advance of a section 1172.6 evidentiary hearing.
The Court reasoned that a person who seeks relief under section 1172.6 has previously been convicted
at a presumptively fair trial proceeding. However, if the trial court issues an order to show cause (and orders an evidentiary hearing on a section 1172.6 petition), the prosecution must prove guilt beyond a reasonable doubt. In this respect, a section 1172.6 evidentiary hearing resembles a criminal trial, and disclosing Brady material in connection with a section 1172.6 evidentiary hearing promotes the search for truth.
The Court of Appeal found that the trial court did not clearly consider Brady principles when ruling on the discovery motion. The Court conditionally reversed the trial court’s order denying the petition and remanded the case for further proceedings to ensure compliance with Brady requirements.
People v. Nuno, 2024 Cal.App. LEXIS 650 (10/17/2024).
LCW Annual Public Sector Employment Law Conference
January 30-31, 2025
We're thrilled to announce that registration is open for the Annual LCW Conference taking place January 30-31, 2025, in San Diego!
The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.
When: January 30-31, 2025
Where: Hilton San Diego Bayfront
One Park Boulevard San Diego, CA 92101 REGISTER HERE
Did You Know?
Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety.
• AB 1725, which failed to pass this year but may be reintroduced during the next legislative cycle, would have required municipalities to post specified information online relating to settlements and judgments of $50,000 or more resulting from allegations of improper police conduct.
• The average age of a police officer in the United States is 40 years old.
• The first female police officer in the United States was Alice Stebbins Wells, who was appointed in 1910 in the City of Los Angeles, CA.
• A federal judge recently ruled against 20 Philadelphia police officers who sued their department on First Amendment grounds after being fired and disciplined over Facebook posts that the department deemed to be offensive.
Consortium Call Of
The Month
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Question:
Our agency suspects that an employee may have a disability that interferes with his ability to do his job. The employee has not requested any accommodation. Is it too early to approach the employee regarding the interactive process if the employee has not mentioned any need for accommodations?
Answer:
An employer’s obligation to initiate the interactive process begins when the employer knows (i.e., “actual knowledge”), or should know of (i.e. “constructive knowledge”), an employee’s disability. The employer has knowledge of a disability when:
• The employer becomes aware of the possible need for an accommodation through a third party (such as a doctor’s note);
• The employer observes that the employee may need an accommodation; or
• An employee with a disability has exhausted leave under other laws and yet the employee or the employee’s health care provider indicates that further accommodation is still necessary for recuperative leave or other accommodation for the employee to perform the essential functions of the job.
On The Blog
Essential Best Practices for Contracting with AI Service Providers
By: Heather DeBlanc & Madison Tanner
Engaging with an Artificial Intelligence (AI) service provider entails navigating a complex legal landscape. To develop a successful partnership, organizations must carefully evaluate legal considerations prior to signing a contract. This article covers the essential best practices for contracting with AI service providers.
1. Conduct Due Diligence
AI companies and the services they provide are relatively new to the business world. Thus, it is imperative to conduct comprehensive due diligence on the AI service provider. This may include reviewing the company’s status on the California Secretary of State website to ensure good standing, reviewing publicly available reviews, asking for references from other customers, determining how long they have been in business and how long the product has been live, and making inquiries into the company’s financial health. Getting a sense of the overall health of the company can be key to avoiding a relationship with an unstable or unreliable entity.
2. Understand Data Protection and Ownership
It is key to understand what type of data will need to be shared with the company in order for it to provide the offered services. Once it is determined what data will be shared, an assessment must be made as to what legal restrictions or protections exist for that data. For example, does the data include employee information, pupil records, or nonpublic business information? If any confidential information will be shared, the contract must clearly state each party’s obligations regarding compliance with all applicable laws. It should also clearly delineate legal responsibility for a breach of any confidential information.
The contract should also set forth who holds ownership of the data (both input and output). Typically, ownership of data should remain with the entity receiving the AI services. However, AI companies may request to retain aggregated anonymized data or data in a form that it can utilize for its own benefit. These provisions should be carefully scrutinized to avoid the AI service provider utilizing the data in a manner that violates any applicable privacy laws or organization policies.
3. Establish Liability Obligations
A contract with an AI provider should require the provider to be liable in the event of a data breach. It should also specify the provider’s specific obligations under data breach laws and notification requirements so it is clear who must take immediate steps in the event of a breach of confidential information. A contract should clearly state the repercussions of any breach of the data obligations or other breach of the contract. It is also prudent to require the company to indemnify for any third party claims that may arise from their AI services. These provisions are critical to reducing potential fiscal impacts in the event something goes wrong with the services.
4. Anticipate Termination of the Contract
A strong termination provision can provide your organization with significant leverage throughout the term of the services. If drafted correctly, it can allow termination if the AI provider’s services are falling short of expectations, not meeting the desired needs, or if the AI provider is not delivering the services in accordance with the contract. Termination provisions can also protect your organization in the event the AI company abruptly cancels by requiring notice and reimbursement requirements.
Another element to include in a termination provision is how the data will be handled at the conclusion of the relationship. It should articulate any return or destruction of data and the timelines for the action.
Contracting with an AI service provider requires careful consideration of a number of variables. By conducting due diligence, understanding data protection and ownership rights, establishing liability obligations, and anticipating termination, organizations can set themselves up for a successful relationship. This list is not exhaustive however and there are other important factors that should be considered, especially depending on the type of AI services being provided. Engaging legal counsel to assist with reviewing AI service contracts will mitigate risk and ensure the agreement is tailored to the specific needs of your organization.
View the full blog post here.
Liebert Cassidy Whitmore