McDaneld v. Eastern Muni. Water Dist. Bd. 109 Cal. App. 4th 702, 135 Cal. Rptr. 267

Ronald McDaneld was a mechanic with the Eastern Municipal Water District. McDaneld submitted a request for family medical leave to care for his father during and after ankle surgery for a period from January 23 to January 30. After his January 23^rd surgery the father went to McDaneld's house in Temecula, where he stayed until Thursday, January 29.

During the week beginning Monday, January 26, while his father was staying with him, McDaneld played golf on Monday afternoon, and worked intermittently on his sprinkler system between Wednesday and Friday. On Thursday, January 29, McDaneld drove his father back to his place of business in the San Fernando Valley. McDaneld then stayed home from work Friday to help his pregnant wife, whom he claimed injured her back.

McDaneld was served with a notice of proposed discharge and was terminated after a three-day Disciplinary Review Committee hearing.

Initially a trial court granted McDaneld's petition for writ of mandate to set aside the termination, however, the California Court of Appeals, Fourth Appellate District, reversed and remanded. Upon a second hearing the trial court denied McDaneld's petition.

The California Court of Appeals, Fourth Appellate District, in a de novo review, accepted the administrative findings made by the Water District's general manager, and affirmed the decision to terminate McDaneld.

The Court had to resolve the issue of whether the District violated McDaneld's rights to exercise family leave when "he failed to report for work on a day he was off on Family Medical Leave for his father, when his need to provide FMLA related care for his father was completed, due to his wife's need for assistance under the Family Medical Leave Act on that day."

The Court noted that both state and federal law allow family leave for family medical needs. If the need for leave is foreseeable under federal law, an employee must give 30 days advance notice (29 U.S.C. §2612 (e)(1)) and, under state law, the employee must give reasonable advance notice (Government Code §12945.2 (i). If the need for leave is not foreseeable, the law requires "such notice as is practicable (29 U.S.C. §2612 (e)(1)), depending on the facts and circumstances of the case. The failure to give proper, timely notice can bar a claim under California or federal law that the right to family leave has been violated (Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1).

The Court also noted that it was not disputed that McDaneld gave adequate notice of his need for family leave for his father. The Court then posed the following questions: "Once that need ended, however, should McDaneld have taken Friday off as well, especially since the District manager found that McDaneld did not need family leave to care for his wife? Additionally, did he misuse family leave when he spent part of his leave golfing and working on his yard? Furthermore, did untruthfulness about what he was doing justify his termination."

The Court noted that an honest mistake may excuse a trivial misuse of family leave. It then concluded that, even if McDaneld was mistaken about when he should return to work, the water district's justifiable conclusion that he had misused leave in other ways, and was untruthful, allowed the district to terminate him anyway.

How does this affect your agency? In order to minimize misunderstandings between labor and management every employee should be thoroughly indoctrinated in his/her State and Federal Family Leave rights. Employee handbooks should be written in simple language to include examples, and in-house training should be done on an annual basis. Supervisors, Managers and Administrators should also be thoroughly indoctrinated and where any doubt exists contact the department's legal advisor. Where counsel is unavailable and doubt exists, the benefit should go to the employee.

Civil Code §47.5, Allowing A Peace Officer To Bring Defamation Action Against Complainants Held Constitutional

Loshonkohl v. Kinder 109 Cal. App. 4th 510, 135 Cal. Rptr. 114

Dona Loshonkohl was a police officer with the City of San Diego, and James M. Kinder operated a car rental business and several other businesses in San Diego. Loshonkohl obtained approval for a POP project to deal with problems near Kinder's businesses, including problems with abandoned vehicles, parking, creating a neighborhood eyesore and code violations.

The POP project focused on Kinder's businesses and at least six other businesses in the area. During the course of the POP project, Kinder aggressively confronted Loshonkohl on a number of occasions and by the project's conclusion officers had impounded and towed a total of 41 vehicles, 16 of which belonged to Kinder.

Kinder filed 20 complaints with the SDPD regarding Loshonkohl's actions, which he stated were for the purpose of "revenge." The SDPD individually reviewed, evaluated and investigated 18 complaints; two were treated as "inquiries" because Kinder refused to respond to questions about the complaints. Except where Kinder refused to cooperate, the complaints were determined to be "unfounded," "not sustained" or "Exonerated."

Loshonkohl filed a complaint against Kinder containing five separate causes of actions for defamation under CC 47.5. The trial court found Civil Code section 47.5 constitutional on its face, and as applied. The trial court concluded that, as a result of the fallacious complaints and the resulting emotional toll, Loshonkohl was denied career opportunities and entered judgment in Loshonkohl's favor in the amount of $350,000.

The California Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court.

Division One noted that Division Two, in Walker v. Kiousis (2001) 93 Cal.App.4th 1432, had concluded that Civil Code section 47.5 was unconstitutional in as much as it was content-based discrimination because it restricted "defamatory speech against one group of public officials, peace officers, while leaving intact the privilege under section 47 for defamatory speech against all other public officials." That, Division One pointed out, was prior to the California Supreme Court issuing it's decision in People v. Stanistreet (2001) 29 Cal.4th 497, finding PC 148.6, which makes it a misdemeanor to file a knowingly false allegation of misconduct against a peace officer, constitutional.

Division One pointed out that while the Stanistreet court expressly declined to render an opinion on the validity of Civil Code section 47.5, it found that the Stanistreet reasoning applied equally to Civil Code section 47.5.

Loshonkohl noted that Civil Code section 47.5 made actionable only formal complaints against peace officers based on knowingly false statements of fact -- speech that is constitutionally unprotected. "The scienter requirement 'protects witnesses who honestly misperceive facts. Those who knowingly give false information to police officers should be discouraged from doing so.' Further, "... section 47.5 provides an additional safeguard not included in Penal Code section 148.6, that the speech must be made with 'spite, hatred, or ill will.'" This extra requirement exceeds the standard enunciated by the United States Supreme Court for the recovery of defamation damages by public officials (New York Times Co. v. Sullivan (1954) 376 U.S. 254).

How does this affect your agency: This issue is far from settled. In the Federal Court there is Haddad v. Wall (USDC Ed. Cal.) which ruled Civil Code section §47.5 unconstitutional, holding it violated a complainant's free speech right. The California Supreme Court, Ninth Circuit or United States Supreme Court will have to bring this issue to finality.