Discrimination Complaint Under FEHA Preempts City Charter Requirement That Employee Exhaust Administrative Remedies
Schifando v. City of Los Angeles, 31 Cal. 4th 1074 (2003)
Steve Schifando, a storekeeper for the City of Los Angeles in Parks and Recreation Department
informed his two supervisors that he suffered from severe hypertension that made him dizzy and
lightheaded in stressful situations. Schifando met with the supervisors to discuss his objections to
changes in his job responsibilities. The supervisors argued with Schifando and tried to get him to
"blow his top" due to his medical condition. Schifando exclaimed, "I can't take it anymore; I quit!:
and the supervisors told him to "put it in writing" and provided a piece of paper on which he wrote
"I quite."
When the City terminated Schifando's employment he filed a complaint in Superior Court, alleging
employment discrimination based on physical disability under the Fair Employment and Housing
Act (FEHA). The trial court sustained the City's demurrer and dismissed Schifando's action without
leave to amend. Schifando appealed and the City alleged that he had failed to exhaust his
administrative remedies as provided for in the Los Angeles City Charter. The Court of Appeal
affirmed the trial court's judgment holding that Schifando was required to exhaust both the FEHA
and City Charter remedies before filing his lawsuit in superior court.
The California Supreme Court reversed, holding (5-2) that municipal employees who claim they
have suffered employment-related discrimination need not exhaust City Charter internal remedies
prior to filing a complaint with Fair Employment and Housing,
The Supreme Court noted that while the FEHA does not limit the application of other state statutes
(e.g., CC § 51.7), or constitutional provisions involving discrimination, it expressly preempts local
governmental laws, regulations, and procedures that would affect the rights included in its
provisions. Noting that the Los Angeles City Charter directed employees who believed they had
been wrongfully suspended, laid off, or discharged to follow certain procedures, the Supreme Court
observed that it had never confronted the issue presented, and found troubling the possibility that
exhausting City Charter procedures might deprive a victim of discrimination of a civil right created
by the Legislature.
The Supreme Court concluded that requiring City employees to pursue remedies under both the City
charter and through the Department would frustrate the Legislature's intent. "The Legislature's intent
was to give public employees the same tools in the battle against employment discrimination that
are available to private employees. The FEHA was meant to supplement, not supplant or be
supplanted by, existing antidiscrimination remedies, in order to give employees the maximum
opportunity to vindicate their civil rights against discrimination ...."
How does this affect your agency? This holding does not mandate that an employee
must disregard duly enacted grievance procedures set up by the employer; it allows
the employee the opportunity to select that process which he/she perceives to be the
best remedy under the situation the employee finds him/herself in. The Supreme
Court decision affects a City's ability to have an employee's discrimination action
dismissed.
No Liability For Negative Reference By Prior Employer Based On Incorrect Information
Noel v. River Hills Wilsons, Inc. 113 Cal. App. 4th 1363 (2003)
Brandon J. Noel filled out a background questionnaire, which required full disclosure of any criminal
convictions, for a position with GTE, for whom he had recently begun working on a contingent
basis. In response, Noel wrote that in 1994 he was convicted of a felony he described as "aiding and
abeting [sic]/not fully involved," and he received "parole/probation to youth authority." GTE
retained ChoicePoint to conduct a background investigation of Noel, and Noel's former employers,
including Wilsons where he worked for approximately two months, were contacted.
Santillan, a Wilsons manager, advised ChoicePoint that Noel left its employ because of "loss
prevention issues," and his "rehire status" was "unfavorable." It was undisputed that Noel actually
had no "loss prevention issues" with Wilsons, and Santillan mistakenly gave this information to
ChoicePoint. ChoicePoint included Santillan's information in it's initial report and also provided an
addendum report which revealed that Noel had been convicted of car-jacking, three counts of
attempted robbery, two counts of exhibiting a weapon other than a firearm, two counts of residential
burglary and four counts of robbery, and was sentenced to the CYA and released on parole in March
1999.
GTE notified Noel in writing that his employment was terminated and provided him with copies of
ChoicePoint's reports. Noel sued Wilsons and Santillan for defamation based on Santillan's
comments to ChoicePoint. The trial court granted the defendant's summary judgment motion,
agreeing that Santillan's comments to ChoicePoint were privileged under the conditional common-interest privilege of CC § 47(c). It was also noted that the deposition testimony of Patricia Eller, the
GTE employee who terminated Noel's employment, stated that Noel was disqualified because he
falsified his criminal history on the background questionnaire, and Santillan's comments did not
influence the decision.
The California Court of Appeal, Fourth Appellate District affirmed, holding, as a matter of apparent
first impression, that by including the "based on credible evidence" language in the 1994 amendment
to § 47(c), the Legislature did not intend to make the common-interest privilege inapplicable to the
employment reference context on a showing of the defendant's mere negligence.
The Court noted that the Legislature, in 1994, amended section 47(c) to expressly state the common-interest privilege applies to communications made without malice by current or former employers
to prospective employers. Insofar as the common-interest privilege is concerned, the Court noted that
malice is not inferred from the communication itself, stating that "[t]he malice necessary to defeat
a qualified privilege is "actual malice" which is established by a showing that the publication was
motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked
reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard
of the plaintiff's rights."
How does this affect your agency? This holding should ease the apprehensions
employers have in commenting on prior employees and, hopefully, will afford law
enforcement background investigators an easier time in obtaining information on an
applicant who has had employment prior to his/her applying at your agency.
Officer Who Enters Into Negotiated Discipline Settlement May Not Challenge That Discipline By Writ Of Mandate
Alhambra POA et al. v. City of Alhambra Police Dept. et al. 113 Cal. App. 4th 1413
A citizen complaint, alleging Officer Benny Marquez had sexually assaulted her following a traffic
stop, was received by the Alhambra Police Department (APD). An IA was started and Marquez was
placed on administrative leave. The chief asked the LASO to conduct an independent criminal
investigation and suspended the IA during the pendency of the criminal investigation.
Marquez contacted officer Orozco, who arranged a meeting for Marquez with officer Robert
Torrance, the vice-president of the Alhambra POA. Marquez, Orozco, and Torrance met to discuss
Marquez's suspension. At that time Marquez said he recalled that when he had been at the police
station he threw away a piece of paper with a female driver's telephone number on it, and asked
Orozco and Torrance to retrieve the piece of paper. Torrance retrieved the document from the
wastebasket at the station and gave it to Orozco to deliver to Marquez.
As part of its criminal investigation, the LASO conducted and recorded an interview of Torrance.
The interviewers told Torrance that they were criminal investigators from the Sheriff's Department
and that they were interviewing Torrance as a witness in their investigation of Marquez. The
investigators reminded Torrance that the APD had a policy of cooperating with other agencies in
criminal investigations but that Torrance was under no obligation to speak with them.
Torrance told the investigators that Marquez initiated a meeting with him after being suspended and
said to him that the only reason he could think of for being suspended was a prior traffic stop with
a female motorist. Marquez had described to him the encounter with the woman including kissing
her. Torrance told the investigators that Marquez recalled throwing away a piece of paper containing
the woman's phone number and was concerned because the fact that she wrote down her telephone
number might be helpful to him. Torrance admitted retrieving the document at Marquez's request
and giving it to Orozco for transmittal to Marquez.
After the criminal investigation of Marquez had concluded, Torrance became the subject of an IA
and was interrogated by an Alhambra IA investigator. At the interrogation Torrance's attorney asked
for, but was refused, a transcript of Torrance's Sheriff's Department interview. At the conclusion
of the IA, Torrance was served a notice of a proposed disciplinary action - dismissal - based on four
charges. He exercised his (Skelly) right, and met with the police chief. Following the (Skelly)
meeting Torrance, through his counsel, negotiated and agreed to accept a final determination of
discipline. Torrance agreed to a 240 hour suspension, being placed on probation for six months, and
subjected to a reduction in pay for 12 months. The agreement included findings that the four
disciplinary charges were sustained, except charge 3 which was to be sustained as violations of APD
rules rather than untruthfulness. Torrance also waived his rights to appeal to the Civil Service
Commission.
Torrance then filed a petition for writ of mandate alleging that his interview by the Sheriff's
Department was an interrogation; that he was denied his rights under the Peace Officers Procedural
Bill of Rights Act (POBOR) when his counsel was not permitted to review the record of the Sheriff's
interview; and that he could not be punished for the conduct while acting as Marquez's
representative. Torrance requested the trial court set aside his discipline, delete all references to the
discipline in his personnel files, and permanently enjoin the department from taking adverse action
against Association members for their conduct while acting in a representative capacity under the
POBOR.
After a hearing, the trial court denied the petition ruling that Torrance was not entitled to protection
under POBOR for actions taken while acting as Marquez's representative because Marquez was
under criminal investigation and POBOR does not cover criminal investigations. The trial court
further ruled that Torrance was not entitled to representation during his interview in the criminal
investigation because it was conducted by the Sheriff's Department, not the Alhambra Police
Department, and rejected his claim that the Sheriff's Department was Alhambra's de facto agent or
that it acted in concert with the department when it interviewed him.
The California Court of Appeal, Second Appellate District, affirmed, holding that Torrance may not
challenge the discipline to which he agreed as part of a negotiated settlement; that the POBOR was
not applicable to a criminal investigation by an outside agency; and that Torrance could be
disciplined for removing and returning evidence to an officer, even if he was representing that
officer.
The Appellate Court stated that settlements of disciplinary proceedings are binding in the absence
of a showing of fraud, mistake, undue influence, or duress. The Court also held that Torrance was
not immune from discipline, even if he acted as a representative, by the wording of § 3303(i), which
is expressly limited to noncriminal investigations.
The Appellate Court further noted that representation rights established by § 3303(i) are not
unlimited, citing Upland Police Officers Assn. V. City of Upland (2003) 111 Cal. App.4th 1294,
1309. The Court went on to emphasize that "[w]hatever representative privilege may be created by
POBOR, it does not supplant an officer's official duties. Law enforcement officers "are the guardians
of the peace and security of the community, and the efficiency of our whole system, designed for the
purpose of maintaining law and order, depends upon the the extent to which such officers perform
their duties and are faithful to the trust reposed in them. Among the duties of police officers are those
of preventing the commission of crime, of assisting in its detection, and of disclosing all information
known to them which may lead to the apprehension and punishment of those who have transgresed
our laws ... [I]t is a violation of said duties for any police officer to refuse to disclose pertinent facts
within his knowledge."
The Appellate Court concluded by recognizing that "... an officer acting as a representative may face
difficult choices when it is unclear whether an investigation is criminal or administrative. ... but the
Act provides for no defense based on ... lack of knowledge."
How does this affect your agency? An Association member representing an officer
is still held to his/her ethical and legal law enforcement duties, as well as department
rules and procedures. Any action taken against an Association representative must
be based upon the representative's conduct, weighed against the organizations rules
and procedures, and cannot be analogized with the attorney-client privilege. As the
Court pointed out, even if Torrance were an attorney as well as a peace officer, "...
the attorney-client privilege would not allow him to disregard his official duties as
a law enforcement officer."
Mere Observation Prior To Breath Alcohol Test Does Not Require Certification As Test Operator
Hernandez v. Gutierrez, as Director 114 Cal. App. 4th 168 (2003)
The Department of Motor Vehicles challenged a judgment granting a writ of mandate overturning
its suspension of Richard Vigil Hernandez's driver's license. Because the officer who observed
Hernandez for the requisite period prior to a breath alcohol test was not a certified intoxilyzer
operator, the trial court concluded the test results were inadmissible at the license suspension
hearing.
The California Court of Appeal, Fourth Appellate District, Division Three, reversed, holding that
the results were admissible under the official duty presumption of Evidence Code § 664. The Court
noted that the regulatory requirement that a breath test subject not regurgitate, vomit, eat, smoke, or
ingest alcohol or any other fluid for at least 15 minutes before the collection of a breath sample (Cal.
Code Regs., tit. 17 § 1219.3) does not require the officer observing the subject, as opposed to the
person who eventually administers the breath test, to be certified in the use of the breath test device.
How does this affect your agency? This clears up a gray area of the law and allows
officers who are not intoxilyzer certified to observe a DUI arrestee prior to a certified
officer administering the breath test.
Neither Dispatcher Or Employing Entity Incur Liability For Injury Sustained As Result Of Delayed 911 Response
Eastburn v. Regional Fire Protection Authority, et al. 31 Cal. 4th 1175 (2003)
Felicia Kay Eastburn, three years old, suffered an electric shock while bathing, and her parents
informed defendant' 911 emergency dispatcher of the injury. As a result of the failure to promptly
dispatch emergency personnel, Felicia suffered permanent, debilitating injuries.
Suit was filed alleging, among other things, that defendants acted "negligent[ly] and carless[ly]" and
by "willful, wanton and ... conscious disregard of the rights of the safety of the general public,
including Plaintiff," "demonstrated malice and justifyed a punitive damages award."
The trial court sustained defendants' demurrers without leave to amend. The Court of Appeal
affirmed on the ground that "under Government Code section 815 and Health and Safety Code
section 1799.107, defendants are immune from liability except for bad faith or grossly negligent
conduct, which plaintiffs admittedly cannot allege."
The California Supreme Court unanimously affirmed, concluding that, based on applicable statutory
provisions and the legislative policies underlying them, no statute imposes direct liability on public
entities in such situations, and vicarious liability is limited to cases involving gross negligence or bad
faith.
How does this affect your agency? The Supreme Court reaffirmed that negligence,
in and of itself, will not subject a public employee or public entity to tort liability.
However, there still exists, at a minimum, the duty for public entities to exercise
reasonable care in the staffing and training of emergency dispatch personnel, and
promulgating reasonable guidelines for handling and responding to 911 calls, in order
to avoid a scenario of "gross negligence" and/or "bad faith."
Where Occupants Of A Vehicle Deny Ownership Of Illegal Substance Probable Cause Exists To Arrest All
Maryland v. Pringle 124 S. Ct. 795 (2003)
A police officer stopped a car for speeding at 3:16 a.m. and, during a search of the car, seized $763
from the glove compartment and cocaine from behind the back-seat armrest. The car's three
occupants were arrested after they denied ownership of the drugs and money. Pringle, the front-seat
passenger, was convicted of possession with intent to distribute cocaine and possession of cocaine,
and sentenced to 10 years' without the possibility of parole. The Maryland Court of Special Appeals
affirmed, but the State Court of Appeals reversed, holding that, absent specific facts tending to show
Pringle's knowledge and dominion or control over the drugs, the mere finding of cocaine in the back
armrest when Pringle was a front-seat passenger in a car being driven by its owner, was insufficient
to establish probable cause for an arrest for possession.
The United States Supreme Court unanimously reversed, remanded and stated that because the
officer had probable cause to arrest Pringle, the arrest did not contravene the Fourth and Fourteenth
Amendments. The Court pointed out that under Maryland law a police officer is authorized to
execute warrantless arrests, where the officer has probable cause to believe that a felony has been
committed or is being committed in the officer's presence.
Here, the Court noted, it was uncontested that the officer, upon recovering the suspected cocaine,
had probable cause to believe a felony had been committed; the question was whether he had
probable cause to believe Pringle committed that crime. To determine whether an officer had
probable cause to make an arrest, a court must examine the events leading up to the arrest, and then
decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to" probable cause (Orenelas v. US, 517 U.S. 690, 696).
The Supreme Court concluded that it was an entirely reasonable inference from the facts that any or
all of the car's occupants had knowledge of, and exercised dominion and control over, the cocaine.
As such, a reasonable officer could conclude that there was probable cause to believe Pringle
committed the crime of possession of cocaine, either solely or jointly, and Pringle's attempt to
characterize this as a guilt-by-association case was unavailing.
How does this affect your agency? Upholding an officer's right to take all
occupants of a vehicle into custody when there has been a denial of ownership of the
legally seized contraband, the Supreme Court reaffirmed that an officer must have
articulable "probable cause" for all actions taken during a valid traffic stop.
Fifteen to Twenty Second Wait After Knock and Announce Satisfies Fourth Amendment Requirement For Forced Entry
United States v. Banks 124 S. Ct. 521 (2003)
Federal and local law enforcement officers went to Lashawn Lowell Banks's apartment to execute
a warrant to search for cocaine. The officers called out "police search warrant" and rapped on the
front door hard enough to be heard by officers at the back door, waited for 15 to 20 seconds with no
response, and then broke open the door. Banks, who was in the shower, testified that he heard
nothing until the crash of the door. The District Court denied his motion to suppress the drugs and
weapons found during the search, rejecting his argument that the officers waited an unreasonably
short time before forcing entry in violation of both he Fourth Amendment and 18 U.S.C. § 3109.
Banks pled guilty, but reserved his right to challenge the search on appeal. In reversing and ordering
the evidence suppressed, the Ninth Circuit found, using a four-part scheme for vetting knock-and-announce entries, that the instant entry had no exigent circumstances. Making forced entry by
destruction of property is permissible only if there was an explicit refusal of admittance or a time
lapse greater than the one in this case.
The United States Supreme Court reversed in a unanimous decision, holding that the officers' 15-to-20-second wait before forcible entry satisfied the Fourth Amendment.
The obligation to knock and announce before entering gives way when officers have reasonable
grounds to expect futility or to suspect that an exigency, such as evidence destruction will arise
instantly upon knocking. Richards v. Wisconsin, 520 U.S. 385, 394. Since most people keep their
doors locked, a no-knock entry will normally do some damage, a fact too common to require a
heightened justification when a reasonable suspicion of exigency already justifies an unwarranted
entry. United States v. Ramirez, 523 U.S. 65, 70-71.
How does this affect your agency? By overturning the Ninth Circuit, the Supreme
Court did not give "caret blanche" to officers to always knock, wait a short period of
time, then break in. The Supreme Court stressed exigency based upon the knowledge
of the officers executing the search. Officers must, on a case by case basis, be able
to articulate their justification, and document how and why the exigency "matured,"
requiring their forceful entry.
Union Representative Who Is A Percipient Witness To An Unfair Labor Practice May Not Refuse To Answer Questions When Deposed
American Airlines, Inc. v. Superior Court (DiMarco) 114 Cal. App. 4th 881 (2003)
Alamad, a former American aircraft mechanic, sued American and 11 of his supervisors for wrongful
termination, harassment, and discrimination under the Fair Employment and Housing Act (FEHA).
Alamad alleged, among other things, that throughout his employment he was continually
discriminated against and harassed due to his middle-eastern heritage, that he was subjected to a
hostile work environment, and that he was terminated in retaliation for complaining about the
discrimination and harassment. American contends Alamad was terminated for dishonesty after he
was caught working for another employer on that company's aircraft before the end of his work-shift
for American.
During his wrongful employment termination lawsuit against American Airlines (American), Jawad
Alamad indicated that his union representative, DiMarco, had information that would support his
claims of racial discrimination. American took the union representative's deposition, but he refused
to answer relevant questions on the basis that his discussions with other employees were protected
by a union representative-union member evidentiary privilege. Acknowledging the existence of such
a privilege, the trial court denied American's motion to compel the union representative's deposition
testimony.
The California Court of Appeal, held that neither California nor federal law recognized a "union
representative-union member evidentiary privilege" to prevent the disclosure of relevant information
in a civil action, and directed the trial court to vacate its ruling and grant American's motion to
compel.
The Court pointed out that Labor Code § 923 provides, in relevant part, that it is the public policy
of the state that "the individual workman have full freedom of association, self-organization, and
designation of representatives of his own choosing, to negotiate the terms and conditions of his
employment, and that he shall be free from the interference, restraint, or coercion of employers of
labor, or their agents, in the designation of such representatives or in self-organization or in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection." The
Court opined that there was no indication in the words of the statute or its history that the Legislature
intended to include an evidentiary communication privilege between union members and their
representatives.
The Court stated that creating the type of evidentiary privilege proposed by DiMarco could severely
compromise the ability of employers to conduct investigations pertaining to claims of harassment,
discrimination, unlawful conduct, or other employer rules violations, all to the detriment of union
members. For example, the Court pointed out, the FEHA enunciates this state's public policy to
eliminate discrimination in the workplace. Under FEHA, an employer, as well as a labor union, has
an obligation to "take all reasonable steps necessary to prevent discrimination and harassment from
occurring" in the workplace. The affirmative and mandatory duty to ensure a discrimination-free
work environment requires the employer to conduct a prompt investigation of a discrimination claim.
To carry out its obligation to prevent discrimination by investigating claims, an employer likely will
need to obtain information from a wrongdoer's co-workers who were in a position to witness the
misconduct and identify the wrongdoer. In a unionized workplace, an employer's investigation could
be hampered by a union representative-union member privilege, thus conceivably undermining an
employer and a labor union's statutory obligation to ensure a discrimination-free work environment.
Although there may be various countervailing policy reasons why a union representative should not
be compelled during civil litigation to disclose factual information obtained from other union
members he or she represents, that policy determination (and the parameters of any concomitant
evidentiary privilege) is the province of the Legislature, not a court.
Lastly the Court indicated there was no right of privacy issue because the deposition questions posed
to DiMarco did not ask him to reveal any private associational affiliations and activities. Everyone
concerned already knew, of course, that DiMarco, Alamad, and other American employees were
members of the Union. The questions generally related to the names of American employees
DiMarco had heard using racial slurs toward Alamad and the names of those American employees
whose arbitration testimony was allegedly coerced. These questions do not delve into the
constitutionally protected right of associational privacy.
How does this affect your agency? This case will not affect the way your agency conducts it's
business, however, it will aid and assist your legal representative(s) in obtaining information when
the agency is embroiled in litigation involving an employee alleging employer misconduct.
CRIMINAL LAW/PROCEDURE
SWAT Entry Without Full Compliance With Knock-and-Announce Not Unreasonable
U.S. v. PETERSON 353 F. 3d 1045 (9th Cir. 2003)
Vancouver, Washington and Portland, Oregon, acting in cooperation, learned that Thomas Peterson
was involved in an identity theft operation and other criminal conduct. Information supplied by three
independent sources alerted police that Peterson and an associate had been stealing mail in Portland
and Vancouver. Additional information indicated Peterson's associate, Tai Watson, possessed a
black SKS assault rifle and some two-part (binary) plastic explosives.
Based on that information a search warrant was issued and two pounds of Kinepak binary explosives
were seized from an apartment in Beaverton, Oregon. A second search warrant was obtained for
Peterson's apartment in Vancouver. Because of the suspected presence of explosives, police
considered the execution of this warrant to be high-risk and decided to use SWAT to serve the
warrant. Although the SWAT Team was told there were no known firearms at the location, police
knew that Peterson had an outstanding Oregon warrant for carrying a concealed weapon without a
permit, and continuing surveillance reported that at least three to four people were then inside
Peterson's residence.
Just before team member Corporal Lobdell was ready to knock, someone inside the house suddenly
opened the front door, and recognizing the group as police immediately attempted to close the door.
Corporal Lobdell shouted "Police, with a search warrant," forced the door open, and led the SWAT
team inside. Occupants were swiftly subdued and a quantity of binary explosives, six blasting caps,
5.8 grams of methamphetamine, a quantity of tar heroin, over 1000 pieces of stolen mail, more than
20 fake IDs, illegal duplicates of mailbox keys, a lamination machine, a credit card imprinting
machine counterfeit and forged checks, and $10,500 in cash were seized.
The district court denied Peterson's motion to suppress these items as the fruits of an illegal search.
The United States Court of Appeals, Ninth Circuit affirmed the district court's denial of Peterson's
motion to suppress, holding that the officers completed a difficult and potentially dangerous entry
in a lawful and professional manner without injuring anyone. Peterson's Fourth Amendment Rights
were not violated.
The Ninth Circuit pointed out that exigent circumstances arose during the entry. Here the SWAT
team encountered all three justifications for a no-knock entry - futility, potential destruction of
evidence, and danger.
How does this affect your agency? This case points out that clear and concise documentation of
complicated police operations are well worth the time and effort expended, and that well planned
and executed entries minimize the possibility of Constitutional violations.
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