Fire Watch
firm victories
Partner Geoff Sheldon, Senior Counsels David Urban and Megan Atkinson, and Associate Kelsey Ridenhour Prevail On Appeal Of Battalion Chief’s FEHA Failure To Promote Claims.
A battalion chief worked for a county’s fire department. He tested for promotion to the rank of Assistant Chief four times over an eight-year period, passed the civil service test, but the fire chief did not select him for promotion. He was not given a temporary appointment as an Acting Assistant Chief until late in his career, something he contended would have been a springboard to a full time promotion. He sued his county employer, alleging that his failure to be promoted was because of age, disability, and ethnicity discrimination in violation of the Fair Employment and Housing Act (FEHA). LCW won a motion for summary judgment for the county in the trial court. The battalion chief appealed.
The California Court of Appeal affirmed LCW’s win for the county. First, the battalion chief ’s only evidence of age-related animus was a statement in his own declaration that certain superiors made comments that he interpreted to mean that he should retire. After the trial court sustained the county’s objections to the battalion chief’s declaration, he failed to claim any error in the Court of Appeal. The Court found that the battalion chief forfeited his age claims.
The Court noted that the disability claim was time barred, but continued to consider the claim on the merits. In that claim, the battalion chief claimed that the fire chief did not promote him because he wore a knee brace. The only admissible evidence of disability discrimination, however, was the battalion chief’s claim that the fire chief stopped smiling, stared at his knee brace, and told him to be careful walking. The Court
found that a change in facial expression and/or an expression of concern, are not evidence of discriminatory animus.
Finally, as to the ethnicity discrimination claim, the battalion chief relied heavily on the declaration of a statistician expert to support his theory that the fire chief did not select promotional candidates in his racial-ethnic group at the same rate as the fire chief promoted members of other groups. Court sustained the county’s several objections to the battalion chief’s expert declaration on the grounds that it compared ethnicity data to an irrelevant population. In addition, the battalion chief’s only remaining evidence was based on a position paper that concerned a promotional system that was no longer in effect. The Court found that there was no relevant evidence of ethnicity animus.
LCW Partner Joung Yim And Senior Counsel Megan Atkinson
Persuade The Court To Uphold Police Officer’s Termination For Dishonesty and CLETS Misuse.
A police officer’s wife worked as a real estate agent. One of the wife’s clients claimed to have up to $90 million to purchase a home. The client was dating another officer at the department.
The officer, his wife, and the other officer met for lunch and discussed how they were suspicious that the client was not who she claimed to be. While at lunch, the officer texted his former trainee and asked her to run the client’s license plate. In the text message, the officer falsely stated that the plate was for a suspicious car in his neighborhood. The former trainee sent the officer the return which showed that the car was registered to the client and another man at a specific address. The officer
shared that information with his wife and the other officer. The wife looked up the man’s name online and told the other officer that he was the client’s husband. The other officer was angry because he believed the client was pregnant with his child.
Later, the client filed a complaint with the police department alleging that the other officer was harassing her, had run her DMV information, and had showed up at her in-laws’ residence. She was afraid and was in the process of obtaining a TRO. The Department conducted an investigation and determined the officer intentionally lied to his former trainee while off duty in order to obtain access to confidential information for a personal reason, which he knew he did not have a right to obtain. He then disclosed that information to the other officer, who used it to harass a third party.
The officer was terminated for his dishonesty and CLETS misuse. He appealed. After three days of arbitration, the arbitrator recommended that the officer should only receive “an 80-hour suspension without pay holding 45.71 hours in abeyance.” The arbitrator concluded the Department did not establish that it was harmed by the officer’s lie. The arbitrator explained that even though the officer lied, he “could be rehabilitated with his otherwise spotless record.”
The City Council disagreed and decided to uphold the termination because the Department was harmed by the officer’s dishonesty. The officer filed a Petition for Writ of Mandate.
The superior court judge concluded, “the weight of the evidence supports the City Council’s findings of harm” and that the City Council acted within its discretion to terminate the officer. The superior court judge explained that the officer’s request to his former trainee was based on a lie that set off a series of events that harmed the reputation of the Department: a citizen complaint of harassment; a criminal investigation into the other officer’s conduct toward the client; and the loss of trust between the officer and his former trainee by having her run the license plate under false pretenses; and the fact that the officer’s conduct placed other officers in violation of policies designed to ensure the confidentiality of DMV databases. The superior court judge also recognized that the Department could lose access to CLETS if it is misused.
Associate Attorney Dana Segal Convinces Arbitrator to Uphold Police Officer Termination.
A police officer was accused of being dishonest on an arrest report; lying about her photography business; and other misconduct. Associate Attorney Dana Segal convinced the arbitrator to uphold the police department’s decision to terminate.
First, the arbitrator determined that the city met its burden of showing that the officer provided false and misleading statements regarding both the arrest report and her outside employment. As to the arrest report, the arbitrator noted that the officer stated in her report that she did not observe any officers use any force, yet the body-worn camera showed the officer tapping a fellow officer to get him to stop placing force on the suspect’s neck and head area. The arbitrator also determined that the officer misled the department when she claimed to have conducted “free” photography sessions while advertising, charging, and being paid for at least two sessions.
Second, the arbitrator found that the penalty of termination was appropriate because the police department had good and sufficient cause to terminate an officer it could not trust. The arbitrator denied the officer’s grievance and upheld the termination.
Partner Jesse Maddox and Associate Attorney Morgan Johnson Maintain Summary Judgment Win on Appeal On Former County Employee’s FEHA Claims.
A county terminated an employee after discovering that the employee had violated several personnel rules. The former employee sued, alleging that the county had violated the Fair Employment and Housing Act (FEHA) by: 1) discriminating against him on the basis of his medical conditions and physical disability; 2) retaliating against him for making protected complaints pertaining to his medical conditions and physical disability: and 3) failing to prevent discrimination and retaliation.
The trial court granted the motion for summary
judgment LCW filed on behalf of the county. The former employee appealed.
The California Court of Appeal upheld the county’s motion. At the outset, the Court found the former employee’s “near complete failure” to cite to evidence in the record on appeal meant that he forfeited his claims. The Court did, however, go on to address the merits of his claims.
The Court noted that the employee did not separately discuss each of his causes of action on appeal. Instead, he simply argued that he competently did his job and the reasons for his termination were pretextual. The Court countered that the former employee did not “address the myriad of deficiencies in his performance catalogued” in his most recent evaluation. Moreover, the Court noted that the issue is not whether the former employee did his job competently; the issue is whether the employer was motivated by discriminatory animus. In the end, the Court found that the former employee failed to show any discriminatory animus and upheld the trial court’s decision to dismiss the case based on the county’s motion for summary judgment.
Partner Jennifer Rosner And Senior Counsel Jolina Abrena Convinced Opposing Counsel To Dismiss Age and Mental Disability Claims.
A sheriff’s deputy sued his county employer for the following Fair Employment and Housing (FEHA) claims: harassment on the basis of age and mental disability; retaliation; and failure to prevent retaliation.
Partner Jennifer Rosner and Senior Counsel Jolina Abrena determined that the deputy could not meet the “severe or pervasive” standard necessary to establish harassment, so they filed a motion for summary adjudication on behalf of the county. The deputy’s legal counsel received the county’s motion and immediately dismissed the harassment claims.
LCW’s tenacious lawyering saved the county both the costs of preparing the reply motion and appearing at oral argument. Should the matter proceed, the trial will be limited to the retaliation and failure to prevent claims.
FIRST AMENDMENT
Former Police Chief’s Text Messages, Sent To Friends Many Years Prior, Were Not Protected Speech.
Kate Adams worked for the Sacramento County Sheriff’s Office (Department). On New Year’s Eve in 2013, Adams received two text messages containing racist images from a number Adams did not know. She in turn sent those images to two friends, and texted one friend that “Some rude racist just sent this!!”. That friend responded, “That’s not right.” The messages Adams sent were intended for a purely private audience of friends in the context of social exchanges during “a friendly, casual text message conversation.”
Adams’s friendships with the two deteriorated. In 2015, Adams was promoted to Assistant Chief of Police for the City of Rancho Cordova. In 2019, Adams learned of potential misconduct on the part of one of the friends, and reported the misconduct. That “friend” learned that Adams had reported her, and several anonymous, unsubstantiated misconduct reports were then filed against Adams. The Department promoted Adams to Chief of Police for the City of Rancho Cordova in March 2020.
In July 2020, Adams filed a formal complaint of harassment and retaliation against that “friend” with the County’s Equal Employment Opportunity office. During the investigation, that “friend” provided print-outs of the text messages that Adams had forwarded in 2013, but did not provide any surrounding text commentary. The Department also investigated. During the Department’s investigation, the other friend provided his cell phone which still had the 2013 texts.
Following the investigation, the Department gave Adams a choice to either resign or be “terminated and publicly mischaracterized as a racist.” An attorney for the County told her that if she agreed to resign, the investigation would never become public; however, if she refused to resign, “the investigation would fuel a ‘media circus’” in which she would be labeled a racist. She chose to resign in September 2021.
In March 2022, the President of the Sacramento chapter of the NAACP published an open letter
stating that Adams had sent racially charged pictures to Sheriff’s Department employees. The Sacramento Bee then published an article repeating the open letter’s allegations. As a result of the publicity, Adams resigned from her longtime adjunct teaching position at a local university, and two prospective employers declined to consider her.
Adams sued the County and the Sheriff in U.S. District Court. She alleged a variety of claims, including deprivation of the right to free speech under the First Amendment and “First Amendment conspiracy”. The district court dismissed the two free speech claims, finding that the speech was not about a matter of public concern. Adams filed an interlocutory appeal on the free speech claims only.
The Ninth Circuit affirmed the dismissal. The First Amendment prohibits government officials from subjecting individuals to retaliatory actions for their protected speech. In evaluating a public employee’s First Amendment rights, the initial inquiry is whether the statements substantially address a “matter of legitimate public concern.”
The Ninth Circuit examined the plain language, form, and context of the two text messages, and concluded that Adams was commenting on a personal matter, and not making a public comment. The Court found that Adams’s texts and distribution of the images spoke only of her exasperation at being sent the images, which is an issue of personal—not public—concern. The Court held that the private text messages between friends, forwarding racist images, and complaining about them, was not a “matter of legitimate public concern” within the meaning of Pickering v. Board of Education.
In a sharp dissent, Circuit Judge Callahan stated that Adams should have the chance to hold the County accountable for its harsh reaction to her speech. Her dissent opined that the public concern test should be applied leniently because Adams’s speech was not a workplace grievance, had no arguable impact on her employer, and touched on matters of social or political concern. The dissent concluded that the majority adopted an overly strict approach to public employee free speech claims, and cited to several supporting decisions.
Adams v. County of Sacramento, 2024 US App. LEXIS 22846 (9/9/24).
wage&Hour
Data In City’s Expert Report Raised Disputed Facts In Staff Nurses’ FLSA Salary Test Claim.
The City and County of San Francisco (City) employs Staff Nurses in its hospital, jails and clinics. The City and County considered the Staff Nurses to be exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirements. There are two regulatory tests for the “white collar” exemption from FLSA overtime: 1) the duties test; and 2) the salary test. The issue in this case was whether the City paid the Staff Nurses on a salary basis as required by the salary test.
The Staff Nurses claimed that they were paid on an hourly basis because their annual compensation was divided into hourly rates and they were only paid for hours worked.
The U.S. District Court found the Staff Nurses’ hourly pay rates to be tool used for administrative purposes and concluded that the annual pay figures published in the City’s salary ordinance provided definite evidence that the Staff Nurses were compensated on a salary basis. The court granted the City’s motion for summary judgment.
The U.S. Court of Appeals for the Ninth Circuit reversed. To determine whether employees are compensated on a salary basis, courts must analyze how employees are actually paid. The salary basis test focuses on whether an employee receives a predetermined amount of compensation on a weekly or less frequent basis, irrespective of any promises made in an employment contract.
The Ninth Circuit found material factual questions
regarding whether the City satisfied the salary basis test.
For the most part, the data in the experts’ report that the City relied on supported the conclusion that a sample of Staff Nurses were paid for all the work and non-work hours on their regular work schedules. According to the report, the Staff Nurses appeared to have worked the hours associated with their full-time equivalencies in over 2,000 pay periods across the four years of sample data. However, the report also identified 72 pay periods when a Staff Nurse did not receive pay for all guaranteed hours. Because the Staff Nurses were paid based on the number of hours they worked, this data raised material factual questions as to whether the Staff Nurses received their predetermined amounts of compensation in those pay periods.
The City argued that even if the 72 discrepancies were improper deductions, the City did not intend to make improper deductions, so it should not lose the benefit of the professional-capacity overtime exemption.
The City’s argument was based on a FLSA regulation that an employer generally loses the benefit of the white collar exemption only if “the facts demonstrate that the employer did not intend to pay employees on a salary basis.” (29 CFR section 541.603(a).) An employer’s intent not to pay employees on a salary basis can be demonstrated by an “actual practice” of making improper deductions. The evidence of the 72 unexplained deductions precluded the City from showing that it did not intend to make improper deductions.
The Ninth Circuit remanded for these factual issues to be resolved.
Silloway v. City & County of San Francisco, 2024 US App. 23102 (9/11/24)
DUE PROCESS
Same Person Cannot Be Advocate And Adjudicator In Administrative Hearing.
On September 19, 2020, a motorist, George Loy Clarke, was pulled over and then arrested for driving under the influence. Following his arrest, the California Department of Motor Vehicles (DMV) held an administrative per se (APS) hearing. In the hearing, the DMV decided to suspend Clarke’s driver’s license. The same employee from the DMV served as the DMV’s advocate and the adjudicator of the hearing.
Clarke argued that the DMV’s administrative decision to suspend his driver’s license must be reversed because the manner in which the DMV conducted the administrative hearing violated his right to due process. Clarke cited a case called California DUI Lawyers Assn. v. Department of Motor Vehicles to support his claim. The DUI Lawyers case held that the DMV’s policy of assigning a single employee to act as both the DMV’s advocate and the adjudicator in an APS hearing violated due process under the U.S. and California constitutions.
The Court agreed with Clarke. The Court explained that it is not the employee’s designation or title that is dispositive. It is the function the employee actually performs that will decide the issue. In Clarke’s case, the hearing officer (HO) marshalled, identified, and offered into evidence the DMV’s exhibits. The HO then overruled Clarke’s objections and admitted those exhibits. The HO thereafter cross-examined Clarke. The Court concluded that the HO assumed the prohibited dual roles of adjudicator and advocate. When the HO thereafter suspended Clarke’s driver’s license, his right to receive due process was violated.
Clarke v. Gordon. 2024 Cal.App. LEXIS 565 (9/12/24).
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:
Our agency is considering adopting a comp time policy in lieu of overtime. Do we need to meet and confer with the employee organization who would qualify?
Yes, the agency must meet and confer with the employee organization, as a comp-time policy falls within the scope of representation.
Did you know? Premium Perks
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.
• Staffing wise, Cal Fire has nearly doubled in size over the last decade. Between 2014 and 2024, the number of Cal Fire positions devoted to fire protection grew from over 5,700 to nearly 10,300.
• The Firefighters Bill of Rights prohibits employers from giving the press or media the photograph or contact information of a firefighter under investigation for misconduct unless the firefighter provides express written consent.
• While remodeling their fire station, firefighters with the Sanger Fire Department recently discovered a pair of leather boots and a note hidden within the ceiling of the Captains Office by retired Captain David Gee. The note read: “Captain David Gee... began his career on October 1st, 1964, and finished his last shift on July 29th, 1996.”
On The Blog
Politics in the Government Agency Workplace – 2024
By: David Urban
This year’s presidential election will take place in only about a month and a half, and in the final weeks, one can expect an increase in political discussion and debate. This discussion and debate could certainly continue after the election as well. This activity could make its way into the government workplace, and public agencies should prepare to respond appropriately and lawfully. The First Amendment requires that public employers respect certain employee free speech rights, particularly concerning politics. At the same time, laws prohibit use of government resources for political activity. Government employers also have rights to safeguard their operations from disruption.
This post collects and describes some of the primary laws addressing the issues government employers face for yet another eventful national election.
Employee Free Speech in the Office, on Social Media, and Elsewhere
Political speech rests at the core of what the First Amendment protects, and Courts only reluctantly allow a government agency to punish or attempt to censor such speech. This is true even for those who work for the agency and engage in political speech in their personal capacity.
At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections. For example, the employee could disclose on social media important and legitimate confidential information of the agency, or could misrepresent that they speak for the agency on a social issue related to an election. Also, statements by law enforcement officers in the course of political discussions that show prejudice or bias, if made public, can give the impression the officers will fail to protect certain segments of the community adequately, and may make fellow employees sufficiently uncomfortable in the workplace that the officers have effectively disrupted the agency’s operations. If the impacts on the agency are severe enough, the officers could not claim the First Amendment protects them from being disciplined.
Under First Amendment principles, a public employee cannot be disciplined for their speech (1) on matters of
“public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue. Courts have described the balancing as “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”
Political Activities on Work Premises or During Work Time
Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work. Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.” The agency should promulgate a workplace rule or regulation to describe this type of prohibition.
The Government Code provides that public agencies should not place restrictions beyond these, however. Section 3203 provides, “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”
Political Activities in Uniform
California law prohibits public employees from engaging in political activities while in uniform. Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.” For public safety officers and firefighters specifically, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when those employees are on duty or when they are in uniform. (Gov. Code, section 3302, subd. (a), 3252, subd. (a).)
Employee Use of Agency Resources for Partisan Politics
California law prohibits the use of government agency resources for partisan political activities related to an election – this includes copy machines, office supplies, office e-mail, office computer systems, or other resources. The California Supreme Court in Stanson v. Mott in 1976 held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law. Enacted in 2001, Government Code section 54964 writes into law the Stanson holding. In addition, Government Code section 8314 provides, “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . .”
For California public educational institutions in particular, Education Code section 7054 provides, “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.” The statute imposes criminal penalties for a violation.
Education Code section 7054.1, however, provides a carve-out related to bond issues that are on the ballot. It allows board members and administrators to appear before citizen groups and provide reasons why the board called a bond election and allowing responses to inquiries from the citizen groups.
Time Off to Vote
California law provides employees the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open. Elections Code section 14000 subdivision (a) provides, “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.” Section 14000 subdivision (b) provides, “No more than two hours of the time taken off for voting shall be without loss of pay.” (Emphasis added.)
Any additional time needed by the employee to vote can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise. Further, under Section 14000 subdivision (b), time off for voting shall take place only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements. Under Section 14000 subdivision (c), if employees believe that they will need time off to vote on Election Day, they must give the employer notice at least two days before the election.
Conclusion
Questions regarding political activities and the government workplace can raise complex issues, and trusted legal counsel can help navigate the agency’s response. Also, a prudent administrator or manager will review the agency’s personnel and other policies in advance to be ready when issues do arise.
View the full blog post here.
LCW Annual Public Sector Employment Law Conference January
30-31, 2025
We're thrilled to announce that registration is now 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
Liebert Cassidy Whitmore