LCW Partner James Oldendorph And Associates

Aleena Hashmi And Lee Heard Win Dismissal Of Discrimination And Failure To Accommodate Lawsuit.

An LCW team led by Partner James Oldendorph and Associates Aleena Hashmi and Lee Heard won the dismissal of a lawsuit against a city client. A fire inspector had knee replacement surgery in November 2016. On April 21, 2017, he was cleared to work with no work restrictions. His city employer scheduled a Functional Capacity Evaluation (FCE) to determine whether he could safely work.

In April 2017, the inspector returned to light duty at his same salary, seniority, and benefits. In May 2017, the FCE confirmed the inspector did not need any work restrictions or accommodations. The inspector’s treating physician concurred with the FCE.

In June 2017, the inspector returned to work without any restrictions, and signed a Full Duty Work agreement confirming he needed no accommodations, and would tell his supervisor immediately if he: suspected he might need accommodations in the future; or believed any job activity was unsafe or painful; or needed additional leave.

In October 2021, the inspector sued the city alleging age and disability discrimination and failure to accommodate. The inspector alleged that his medical leave was extended in 2017 because no light duty work was available while he was awaiting the results of the FCE, and that his workload doubled when he returned. He also alleged that throughout his tenure his coworkers repeatedly asked him when he was going to retire. The inspector claimed these actions led to his constructive discharge.

The Court granted the city’s Motion for Summary Judgment dismissing all of the inspector’s claims. The Court found no substantial evidence of any discriminatory animus or any adverse employment actions.

First, the Court found that the inspector’s failure to accommodate claim was time-barred by the threeyear statute of limitations. The Court also rejected the inspector’s claims that the City failed to engage in the interactive process and failed to accommodate him by reducing his double workload. The inspector admitted that due to technical computer issues he was not expected to, and did not actually complete, a double workload. Nor did the inspector ever complain about it. The inspector also failed to identify anyone to whom he made accommodation requests, or that he ever asked his supervisor for an accommodation as required by his Full Duty Work agreement.

Second, the Court noted that the co-worker comments and questions about retirement age are commonplace. The inspector admitted there was a similar dynamic at the City, and that his coworkers frequently discussed how retirement was a perk. The Court further noted that none of the alleged comments amounted to adverse actions in and of themselves, nor did they lead to or relate to any City-imposed adverse employment actions.

Finally, the inspector also failed to prove that his working conditions were so intolerable, aggravated, or severe to force a reasonable person to retire.

LCW Partner Suzanne Solomon And Associate Abigail Clark

Convince The Ninth Circuit That A Probationary Police Officer’s Release Was Lawful.

An LCW team led by Partner Suzanne Solomon and Associate Abigail Clark won an appeal in the U.S. Court of Appeals for the Ninth Circuit on behalf of a city client.

The case arose after a police officer was released on probation. A public outcry had occurred in the wake of the discovery that the officer had been charged with excessive use of force in his prior employment. The police officer sued the city, alleging that his release was an arbitrary and capricious government action that violated his substantive due process rights.

To prevail on a substantive due process claim, the police officer had to show that his government employer took specific action, such as a governmental “blacklist”, that effectively excluded him from his chosen profession of law enforcement. The Ninth Circuit agreed with the District Court that the officer had failed to allege that: he had been blacklisted from the police force; and the city was otherwise responsible for the public outcry over his hiring. The Ninth Circuit affirmed the district court’s denial of leave to amend, concluding that the District Court had acted within its discretion in determining that leave to amend would be futile.

LCW Partner Geoff Sheldon, Senior Counsel Dave Urban, And Associate Daniel Seitz Won The Early Dismissal Of A Constitutional Political Speech Lawsuit.

An LCW team led by Partner Geoff Sheldon, Senior Counsel Dave Urban, and Associate Daniel Seitz won the dismissal of a lawsuit against the County of Los Angeles. When a lawsuit is filed, the entity being sued has options. One option is for the entity to answer the complaint to tell its side of the story and to litigate the case. Another option is to file a motion to dismiss, which asserts that even if all the allegations in the lawsuit are true, there is still no cause of action. The latter option is very challenging. Even if a court grants the motion, the court usually gives the person suing an opportunity to try again to file a successful lawsuit.

The LCW team took the more challenging option and won. Here, County employee Michael Craine joined Local 119 of the American Federation Of State, County, And Municipal Employees Council in 1999. Craine later decided to withdraw from the union. He sent a letter to Local 119 on January 19, 2022. Craine’s letter withdrew his authorization for the union to deduct his dues from his paycheck.

After Local 119 refused to process his request until a later time, Craine filed a lawsuit. Craine alleged that taking the dues deductions without his permission violated his constitutional right to decide whether to fund political speech. Upon receiving the lawsuit, Local 119 cancelled Craine’s dues deduction and mailed Craine a check reimbursing him for dues deducted after January 19, 2019, along with interest on that amount.

Geoff, Dave, and Daniel filed a motion to dismiss alleging that Craine’s lawsuit was moot. To proceed in federal court, Craine needed to prove: he was injured because of another’s conduct, there was a causal connection between his injury and the conduct, and his injury could be redressed by a court.

Here, Local 119 stopped its dues deductions once Craine sued, refunded the dues it deducted, and provided him interest on the dues deductions. As a result, Craine had no ongoing injury and a moot lawsuit. Once the LCW legal team learned these facts they immediately moved for dismissal. The judge then granted the dismissal without leave to amend. This helped the County avoid time-consuming and expensive discovery and trial.

For more information on some of our upcoming events and trainings, click on the icons below:

Join us at LCW’s 2023 In-Person Public Sector Employment Law Conference!

We're thrilled to announce that registration is now open for the 24th Annual LCW Conference taking place March 16 - 17, 2023. After a couple of years of Zoom meetings and virtual hangouts, we're looking forward to seeing you in-person for the 2023 LCW Conference 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: March 16 - 17, 2023

Where: Hilton San Diego

1 Park Boulevard San Diego, CA 92101

2023 LCW Conference attendees will gain access to:

• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers.

• MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered!

• Fun Activities. It wouldn't be the LCW Conference without some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!

REGISTER HERE.