CLAREMONT POA v. CITY OF CLAREMONT et al., (2003) 112 Cal. App. 4th 639

In May 2000, the police department implemented a program to record the race of drivers and pedestrians stopped by officers if the stop did not result in arrest or citation. Officers were required to inform the dispatcher of the reason for the stop and the race, age group, and gender of the driver or pedestrian. The tracking system, to determine whether officers engaged in racial profiling, was in effect through April 2001.

After it was determined that the information gathered through this tracking program was insufficient to determine whether officers engaged in racial profiling, a subcommittee was appointed and recommended a new data collection program. The association president, a member of the committee, objected to some provisions of the new policy and the association invoked the Meyers-Milias-Brown Act (MMB), and asked to meet and confer with the city concerning the policy in April 2002. The city, citing advice of counsel, refused the request.

The association petitioned the superior court for a writ of mandate in July 2002 seeking to compel the city to meet and confer. The superior court denied the petition, finding in part that the policy fell predominately within the city's management prerogative to determine policy objectives and, therefore, was not subject to the meet and confer requirement.

The California Court of Appeal, Second Appellate District, reversed and directed the superior court to grant the petition and order the city to revoke its decision to implement the vehicle stop policy and comply with its obligation under MMB to meet and confer with the association before making another decision on the matter.

The Appellate Court pointed out that MMB requires a public agency to meet and confer in good faith and to fully consider the position of the employee organization, but does not prevent a public agency from implementing proposed changes if the parties fail to reach an agreement, citing Placentia Fire Fighters v. City of Placentia (1976) 57 Cal. App.3d 9, 28. The Appellate Court also noted that a policy or regulation must have a significant and adverse effect on wages, hours, or other working conditions to fall within the language of MMB.

The Appellate Court stated "[t]he decision to undertake measures to guard against both the practice of racial profiling and the public perception that racial profiling occurs is a fundamental policy decision that directly affects the police department's mission to protect and to serve the public. We conclude that the decision precisely how to implement that fundamental policy, however, involves several variables affecting law enforcement officers and is not itself a fundamental policy decision." (Emphasis added.)

The Appellate Court also concluded that the vehicle stop policy significantly affected officers' working conditions, particularly their job security, freedom from disciplinary action, their prospects for promotion, and the officers' relations with the public. Additionally, the new policy was a significant change from the former tracking program, which involved no written report by officers, no outside research team, and fewer required data items.

How does this affect your agency? Prior to the implementation of such a policy, which contains the possibility of disciplinary action, may affect promotion, officer relationships with the public, significantly changes how officers collect and report data, where and who will review data, and how much data is to be collected, legal counsel should be consulted and the association should be given an opportunity to review and comment.

MILLER v. CLARK COUNTY, (2003) 340 F. 3d 959

While on routine patrol a Deputy became suspicious of the driver of a vehicle, ran the plate and found the plate registered to a different auto. The deputy turned on his emergency overhead lights and siren, however, the driver, later determined to be James Tracey Miller, refused to pull over. At the entrance to a long driveway, the car slowed and a passenger exited. The deputy pursued the passenger and called for backup, while the driver drove up the driveway un-pursued. Deputy Bylsma and his canine "Kimon" arrived, walked up the driveway and located the pursued vehicle, un-occupied, in front of a house where suspect Miller lived with his parents.

Other deputies, familiar with the residence, informed Deputy Bylsma that the house's residents were not "law enforcement friendly," and that a mentally ill person lived there. Suspect Miller was subsequently seen running from the house and was tracked across the rural property. Pausing at a dense wooded area Deputy Bylsma yelled: "This is the Sheriff's Office. You have five seconds to make yourself known, or a police dog will be sent to find you." There was no response and the dog was let off his leash and given a command to search and detain by biting an arm or leg. About one minute later Deputy Bylsma heard Miller scream and immediately ran into the woods towards the scream. Upon arriving at Miller's location and seeing that Miller was unarmed, Deputy Bylsma ordered his dog to release Miller, and the dog promptly complied.

Miller filed an action against Clark County and Deputy Bylsma under 42 U.S.C. § 1983, alleging use of the police dog constituted excessive force. After a bench trial, the district court entered judgment in favor of the County and Deputy Bylsma, holding use of the dog was not unreasonable "excessive force" under the circumstances.

The United States Court of Appeals, Ninth Circuit, affirmed, holding that under the totality of the circumstances Deputy Bylsma's use of a police dog to bite and hold Miller until other deputies arrived less than a minute later was a reasonable seizure that did not violate Miller's Fourth Amendment rights. (Mendoza v. Block, 27 F.3d 1357, 1362-63 (9^th Cir.1994).

How does this affect your agency? This case restates prior decisions that the use of a police canine to bite and hold a suspect does not constitute excessive force where circumstances justify such use. Canine officers should always keep in mind that there may exist a fine line between acceptable use and excessive force and write comprehensive chronological reports.

Denial Of Maternity Leave
Extensions Interfere With Rights
Under FMLA

LIU v. AMWAY CORPORATION, (2003) 347 F. 3d 1125

Xin Liu was hired in May 1997 and went on maternity leave June 17, 1998. Her child was delivered in early August and set her expected return date as September 19, 1998. A few weeks prior to her scheduled return, her supervisor Tran, telephoned to ask whether she would be returning on September 19^th. Liu informed Tran she had experienced fainting spells and fatigue and felt she needed more time to recover from childbirth. Tran insisted she commit to a specific return date and Liu requested an extension of her return date until December, which Tran immediately denied.

A week prior to the scheduled September return date Liu and her husband visited her office to attend a coworker's birthday party. Tran asked Liu to meet him in his office where he demanded she provide a firm return date. Liu again requested an extension of her leave until December to "recover from my pregnancy and bond with my baby." Tran denied the request but ultimately agreed to a shorter extension to November 16, 1998. After the meeting Tran transferred Liu from pregnancy leave status to a personal leave of absence.

Around the beginning of October, Liu decided to travel to China to provide needed care for her terminally ill father and to continue caring for and bonding with her newborn. She telephoned Tran again to ask for an extension until December, which Tran refused to grant, but did extend Liu's date to November 23, 1998, after the Human Resources Department explained her situation.

Shortly before Liu was to leave for China, Tran requested she visit the company to review her annual performance evaluation. At that time Tran informed Liu that the company was downsizing and gave her the evaluation which showed a 19% drop from the overall evaluation score she had received six months earlier. Around the third week in October a decision to terminate Liu was made, and when Liu returned from China on November 18, 1998, Tran informed her she had been terminated.

Liu brought an action against Amway. The district court held that Amway had not interfered with Liu's Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA) because she was on leave when she was terminated. The United States Court of Appeals, Ninth Circuit, reversed the district court's grant of summary judgment on Lieu's FMLA, CFRA, and violation of California public policy claims, and remanded.

The Court noted that there was no dispute that Liu was entitled to unpaid leave under the FMLA, and its state counterpart CFRA, after her pregnancy disability leave expired. Liu was entitled to a maximum of four months of pregnancy disability leave, under Fair Employment Housing Act (FEHA), and California Government Code § 12945. She was then entitled to an additional 12 weeks of leave to care for her baby, or herself, or a close relative with a serious illness, under the FMLA, 29 U.S.C. § 2612(a), and CFRA, § 12945.2(a).

The Court pointed out that the FMLA prohibits interference with the exercise of the employee's right to take leave. The Department of Labor regulations interprets "interference" to include "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave."

The Court stated that Liu duly informed Tran of the reasons for her leave and that it was his duty to initiate a procedure to determine whether she qualified for FMLA leave, but he took no action to determine her entitlement. An employer's good faith, or lack of knowledge that its conduct violates FMLA, does not protect it from liability, according to the Court.

The Court noted that under Department of Labor (DOL) regulations, the mis-characterization of Liu's FMLA leave as personal leave qualified as "interference" with her leave. The designation of Liu's leave as personal leave deprived her of rights under FMLA. By designating Liu's leave as "personal," she was subject to the control and discretion of her supervisor in taking leave to which she had a statutory right. Had Liu's leave been appropriately designated FMLA leave, Tran would not have had such discretion.

The Court found that Liu had presented evidence from which a jury could conclude that Tran took the fact that she took leave into account in giving her a low score on her evaluation and recommending her for termination. Where termination decisions rely on subjective evaluations, careful analysis of possible impermissible motivations is warranted because such evaluations are particularly "susceptible of abuse and more likely to mask pretext."

Concluding, the Court stated that, under California law, discharge in violation of the CFRA has been held, as a mater of law, to constitute wrongful discharge in violation of public policy. As its federal counterpart, violation of FMLA also must constitute a violation of public policy.

How does this affect your agency? The Ninth Circuit reemphasized that it is the employer's responsibility to determine when leave is appropriate under the Family Medical Leave Act; to inquire as to specific facts to make that determination; and to inform the employee of his or her entitlements. The Court also strongly implied that using of an employee's performance evaluation to show displeasure towards the employee, who was entitled by statute to the leave taken, could constitute an action against public policy, exposing the employer to liability for interference with the employees rights.

TEAMSTERS LOCAL 856, et al. v. PRICELESS, LLC et al., (2003) 112 Cal. App. 4th 1500

Christina Bellantoni, a reporter for the Daily News, sent requests for records pursuant to the California Public Records Act (CPRA) to numerous San Francisco Bay Area cities, asking for the "names, titles and W2 wages of all [city] employees for the 12 months ending December 31, 2002."

The Union representing the employees, Teamsters Local 856, filed a complaint for injunctive relief alleging that release of the employees' names would be an invasion of privacy and would cause irreparable harm. The Union also alleged that release of the information regarding peace officer employees would violate PC 832.7, and sought preliminary and permanent injunctions. The Daily News filed opposition arguing that the items of information requested were public records, were not exempt from the provisions of the CPRA, and that disclosure would not infringe on any privacy interests.

The trail court ordered release of the requested information without the names of the individual employees, specifically finding "a reasonable expectation of privacy in the employees based on the confidentiality policies of the City and a failure to articulate or show the public interest in the disclosure of information linked to individuals."

The California Court of Appeal, First Appellate District, affirmed, concluding that public employees do have a legally protected right of privacy in their personnel files.

The Court stated that while the CPRA was weighted in favor of disclosure of public records, it did not attempt to uproot constitutional concerns of individual privacy. At the heart of the CPRA is the declaration that "every person has a right to inspect any public record, except as hereafter provided," and places the burden of justification on the agency seeking to withhold disclosure. The Court pointed out that despite the focus on disclosure, the Legislature expressly recognized the importance of individual privacy interests, noting that Government Code § 6254 provides "[n]othing in this chapter shall be construed to require disclosure of records that are any of the following; ... (c) [p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy."

Addressing peace officer payroll files, the Court cited City of Los Angeles v. Superior Court (2003) 111 Cal. App.4^th 883, which, although requiring disclosure between husband and wife in a dissolution action, held generally that "[t]he legitimate expectation of privacy recognized and protected by statue includes peace officers' payroll records." The Court, in City of Los Angeles, supra, acknowledged that the term "payroll records" did not appear in the statue, but reasoned that "even though the pay scale of public employees is generally a matter of public record, it is quite a different thing to know with precision another person's salary, selection of benefits, and potential retirement income. Few records are deemed more personal. Of all records kept by employers, it is the disclosure of payroll records that would constitute one of the greatest 'unwarranted invasions of personal privacy.'"

How does this affect your agency? The court has preserved the objectives of the Public Records Act, by protecting personnel file information regarding the identity of individual public employees, while allowing the release of general information that is not exempted by statute. Where doubt exists as to what information should be released, consultation with agency legal staff is highly advised.

STATE DEPARTMENT OF HEALTH SERVICES v. SUPERIOR COURT OF SACRAMENTO COUNTY, (2003) 31 Cal. 4th 1026

Theresa McGinnis began working for the Department of Health Services (DHS) in 1992. In 1995 she was transferred under the supervision of Cary Hall. In November of 1997 McGinnis reported to a supervisor that Hall had sexually harassed her from early 1996 until late 1997; the behavior included both inappropriate comments and unwelcome physical touching. The supervisor conveyed the allegations to DHS's Office of Civil Rights, which investigated her allegations and later determined that Hall had violated DHS's sexual harassment policy. DHS began disciplinary action against Hall, prompting his retirement.

McGinnis brought an action against Hall and DHS for Hall's conduct. The Superior Court denied DHS's motion for summary judgment and the Court of Appeal denied DHS's writ of mandate. The Appellate Court held that the Fair Employment Housing Act (FEHA) imposes strict liability on employers for sexual harassment by their supervisors, and that the application of the defense for employers, established by the United States Supreme Court decisions in Burlington Industries, Inc. V. Ellerth (1998) 524 U.S. 742, and Faragher v. City of Boca Raton (1998) 524 U.S. 775, would be inconsistent with the statutory language and legislative intent of the FEHA.

The California Supreme Court affirmed, concluding that an employer is strictly liable under the FEHA for sexual harassment by a supervisor.

The Supreme Court noted that, like Title VII, California's FEHA prohibits employment discrimination based on sex, however, unlike Title VII, the FEHA expressly and separately prohibits workplace harassment based on sex (GC § 12940(j)(1)). The Supreme Court pointed out that for purposes of the prohibition against workplace harassment, the FEHA defines "employer" to include "any person acting as an agent of the employer, directly or indirectly." (GC § 12940(j)(4)(A)).

The Supreme Court also held that, in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. That defense has three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered.

The Supreme Court emphasized that this defenses affects damages, not liability. An employer that has exercised reasonable care, still remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care

The Supreme Court concluded that an employer continues to be strictly liable for hostile environment sexual harassment by a supervisor. An employee's failure to report harassment to the employer is not a defense on the merits to the employee's action under the FEHA, but at most it serves to reduce the damages recoverable. And it reduces those damages only if, taking account of the employer's anti-harassment policies and procedures and its past record of acting on harassment complaints, the employee acted unreasonably in not sooner reporting the harassment to the employer.

How does this affect your agency? Although this case re-emphasizes that employers in California will remain strictly liable for sexual harassing conduct of it's supervisors, and the need to develop, distribute, and train all employees in how to report such incidents, it establishes a viable defense for employers regarding damages. In order to take advantage of the "avoidable consequences" defense, agencies should review them. Policy and procedure should be reviewed in order to make sure that practice comports with the three elements set forth by the Supreme Court.

THE PEOPLE v. CHRISTOPHER ANTHONY GUTIERREZ, (2003) 112 Cal. App. 4th 1463

Christopher Anthony Gutierrez was convicted of forcible oral copulation and forcible sexual penetration with a foreign object. Prior to trial Gutierrez moved for "Pitchess" disclosure of information in the personnel records of the two officers who arrested him. The trial court declined to conduct an in camera hearing, finding Gutierrez had failed to establish good cause, as required by Evidence Code § 1043(b)(3).

The California Court of Appeal, Second Appellate District, affirmed, rejecting Gutierrez's claims that the statutory "Pitchess" procedures run afoul of Brady v. Maryland (1963) 373 U.S. 83, in violation of his due process rights.

The Court stated that, contrary to Gutierrez's assertion, the "Pitchess" scheme does not unconstitutionally trump a defendant's right to exculpatory evidence as delineated in Brady. Instead, the two schemes operate in tandem. "Pitchess ... and its statutory progeny are based on the premise that evidence contained in a law enforcement officer's personnel file may be relevant to an accused's criminal defense and that to withhold such relevant evidence from the defendant would violate the accused's due process right to a fair trial." (People v. Mooc (2001) 26 Cal.4^th 1216)

The Court noted that the statutory "Pitchess" procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent "Pitchess" standard cannot establish Brady materiality. The Court also pointed out that, as it recently explained in People v. Jordan (2003) 108 Cal. App.4^th 349, a "prosecutor's duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess," and that is "actually or constructively in its possession or accessible to it."

The Court concluded that under Alford v. Superior Court (2003) 29 Cal.4^th 1033, the prosecutor does not generally have the right to possess, and does not have access to, confidential peace officer files. Gutierrez's argument for routine review of the complete files of all police officer witnesses in a criminal proceeding necessarily fails.

How does this affect your agency? This case reaffirms that without a showing of "good cause" there is no entitlement to information contained in a peace officer's personnel file.