Fire Watch
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.
laborrelations
PERB Defers Interrelated Claims to Arbitration.
The California Department of Corrections and Rehabilitation (CDCR) and SEIU Local 1000 were parties to a Collective Bargaining Agreement (CBA).
In April 2023, SEIU gave hats to employees working in the Correctional Supervising Cooks (CSC) classification that had the following slogans on the back: “SEIU Local 1000” and “Respect Us, Protect Us, Pay Us.” In late August 2023, CDCR allegedly disallowed the hats and threatened employees with writeups for noncompliance. SEIU raised the issue with management, but CDCR allegedly reiterated its prohibition and issued a counseling memorandum to a CSC who wore the hat.
SEIU filed an unfair practice charge, and the Public Employment Relations Board (PERB) Office of General Counsel issued a complaint alleging interference and retaliation. CDCR answered the complaint, denying the allegations and asserting affirmative defenses, including deferral to arbitration. The Administrative Law Judge (ALJ) granted CDCR’s deferral motion and dismissed SEIU’s charge. SEIU appealed to PERB.
PERB upheld the ALJ’s grant of dismissal. PERB then provided a comprehensive overview of its established pre-arbitration and post-arbitration deferral doctrine, and how that doctrine has evolved over time.
A party that seeks pre-arbitration deferral has the burden to establish that: 1) the dispute arises within a stable collective bargaining relationship; 2) the party is willing to waive procedural defenses and to arbitrate the merits of the dispute; 3) the CBA and its meaning lie at the center of the dispute; and 4) no exception to deferral applies.
In order to establish the third element, the party seeking deferral must establish that the alleged unfair practice was arguably prohibited by the parties’ agreement, and that resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.
If PERB considers deferral after the parties have completed arbitration and received the arbitrator’s final decision, PERB will typically defer to a final arbitration decision and dismiss the related unfair practice claim(s), if: 1) the unfair practice issues were presented to and considered by the arbitrator; 2) the arbitral proceeding was fair and regular; 3) the party asserting deferral agrees to be bound by the arbitrator’s decision; and 4) the arbitration was not clearly repugnant to the purposes and policies of the statute.
In this case, multiple, interrelated claims were presented, including the claims for alleged interference with employee and union rights. PERB differentiates between independent claims, which can stand alone, and derivative claims, which hinge on the outcomes of others. PERB explained that when a claim is derivative, it doesn’t need a separate deferral justification if the independent claim is deferable.
Here, PERB found that the claims for interference with both employee and union rights shared the same facts, standards, and potential remedies, allowing both claims to be resolved together in arbitration without risking an incomplete resolution. PERB explained that SEIU’s claim for interference with the union’s own rights, was derivative of the claim for interference with employee rights. PERB found that deferral to arbitration applied to both claims, even though SEIU argued that the claims required separate handling. PERB thus deferred both claims to arbitration and dismissed SEIU’s complaint.
State of California (Department of Corrections and Rehabilitation) (2024) PERB Dec. No 2926-S.
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.
• Arson investigators are generally seen as peace officers protected by the POBR if their primary duty is the detection and apprehension of persons who have violated any fire-related law or committed insurance fraud.
• In both external and internal surveys conducted by CalFIRE as part of its 2024 strategic plan, survey participants identified recruitment, staffing, and retention as priorities for CalFIRE to meet its goals in the next five years.
• Lithium-ion batteries, widely used in consumer products from cell phones to electric cars are a growing cause for safety concerns, with some municipal departments in California responding to over three calls per week to battery fires.
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: Answer:
We have a probationary employee who is not going to pass probation solely due to inadequate performance during the probationary process. Are we required to keep the employee through the length of the probationary period?
Absent any provisions of a collective bargaining agreement or personnel policies to the contrary, the agency has no legal obligation to keep a probationary employee who is performing inadequately. Best practice is to release a probationary employee who is “not meeting standards” once that becomes apparent, rather than waiting until the end of the probationary period.
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
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