THOMAS v. CITY OF BEAVERTON (Oregon) 379 F. 3d 802 (2004)

Annette Thomas was the municipal court administrator for the City of Beaverton, Oregon. Her supervisor, Sandy Miller, placed her on extended probation after Thomas refused to pass over a subordinate employee, Susie Perry, for promotion to senior court clerk despite Miller's insistence that Perry not be promoted. Perry, an African American, had previously sued the City for failing to promote her to the same position, and the jury had found that the City had unlawfully retaliated against her for complaining of racial discrimination. The City terminated Thomas and she sued the City, Miller, and others for violations of the First and Fourteenth Amendments, Title VII, Oregon Statutes, and common law wrongful discharge. The district court granted summary judgment to the defendants.

The Ninth Circuit U.S. Court of Appeals reversed the grant of summary judgment on the First Amendment and Title VII retaliation claims, and affirmed summary judgment on the equal protection and other claims. The Court held that Thomas had offered sufficient evidence to create a genuine issue of material fact as to whether her refusal to facilitate Miller's allegedly unlawful retaliatory treatment of Perry in the hiring process, constituted expressive conduct on a matter of public concern.

The Ninth Circuit stated that in order to establish a prima facie case of retaliation, under the First Amendment, Thomas had to show that (1) she engaged in protected speech; (2) the defendants took an "adverse employment action" against her; and (3) her speech was a "substantial or motivating" factor for the adverse employment action. The Court noted that Thomas' speech was protected only if she spoke "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." (Roe v. City of San Diego, 356 F.3d 1108, 1112 (9^th Cir. 2004); Connick v. Myers, 461 U.S. 128, 147 (1983).

The Court noted that, by expressing her disapproval of the allegedly retaliatory treatment of Perry to those responsible for deciding whom to promote, Thomas aired her views in an effective forum, which led to the eventual, albeit delayed, promotion of Perry. The Ninth Circuit also held that Thomas offered enough evidence that she engaged in protected activity under Title VII to satisfy an element of her Title VII prima facie case.

How does this affect your agency? No justification exists for taking action against an employee who refuses to acquiesce to a superior's retaliatory treatment of a subordinate. However, there still exists a fine line in determining what constitutes matters of public concern and what are purely internal matters, so that administrators, managers and supervisors should consult legal counsel prior to initiating any personnel action and refrain from emotional decision making.

WILLIAMS v. HOUSING AUTHORITY OF THE CITY OF LOS ANGELES 121 Cal. App. 4^th 708; 17 Cal. Rptr. 3d 374

Michael Williams worked for the City of Los Angles Housing Authority as a print-ship supervisor. Williams received a civil subpoena on two-days' notice to testify in court in an unrelated civil action, and was initially told to comply with the subpoena by management. The afternoon before his scheduled appearance the Authority's attorney told Williams not to appear in Court. Williams disregarded that advice. Williams was subsequently demoted and terminated.

Williams filed suit alleging retaliation in violation of the Fair Employment Housing Act (FEHA), as well as two non-statutory claims. The trial court dismissed Williams complaint for failure to exhaust his internal administrative remedy.

The California Court of Appeal, Second Appellate District affirmed in part, reversed in part, and remanded for further proceedings. The Court held that the trial court erred in dismissing Williams' complaint alleging retaliation under the FEHA and for failure to exhaust his internal administrative remedy, but did not err is dismissing Williams's non-statutory claims, because those claims were not FEHA-related.

The Court of Appeal pointed out that in Schifando v. City of Los Angles (2003) 21 Cal.4th 1074, the California Supreme Court determined that a city employee who claimed to have suffered employment-related discrimination was not required to exhaust both the internal administrative remedy in the city charter, and the administrative remedy provided by the California Fair Employment and Housing Act (Government Code § 12900 et seq.), before filing an FEHA discrimination claim in superior court.

However, the Court of Appeal stated, "we must resolve a question identified in Schifando, whether a public employee who claims employment-related discrimination, and asserts both FEHA claims and non-statutory claims for wrongful demotion and constructive termination in violation of public policy, must exhaust the internal administrative remedy provided by his or her employer with respect to those non-statutory claims before filing a civil action?"

The Court of Appeal concluded that Schifando's exemption must also apply to FEHA-related non-statutory claims when the resolution of those claims would have a preclusive impact on the FEHA claim. The Court stated that to require exhaustion of internal administrative remedies to those FEHA-related non-statutory claims would unduly burden a public employee.

How does this affect your agency? There is little of a preventative nature the department can do to prevent litigation in this area. The reality is that a FEHA related claim does not require exhausting internal administrative claims. The employee can go directly to the Department of Fair Employment and Housing without notifying the employer.

JOHNSON v. HAWE, et al. 2004 U.S. App. LEXIS 18352

Anthony Johnson was videotaping several friends at a Sequim (Washington) public skateboard park when he noticed Chief Nelson drive up in his patrol vehicle. Chief Nelson had come to the park to look for a missing juvenile. The Chief stopped his patrol car in the parking lot and observed Johnson videotaping him as he sat in his vehicle with his driver's side window rolled down. Johnson stopped recording and approached Chief Nelson. Chief Nelson's police radio was operating and he was dialing his cellular phone to contact dispatch to obtain a description of the runaway he was attempting to locate.

Johnson resumed videotaping when he reached the rear of the police car and, as Johnson came around to the passenger side of the car, Chief Nelson rolled down the passenger window, deactivated his cellular phone and asked Johnson, "What do you think you're doing?" Although Johnson stopped recording Chief Nelson, he continued to point his video camera at the chief, who twice told Johnson to stop because Johnson "did not have [] permission to record [him] and ... it was a violation of the law to record conversation without consent." After the second warning, Chief Nelson got out of his car and "contacted" Johnson, physically struggling with him to obtain the video camera. With the assistance of another officer, whom he called for backup, Chief Nelson placed Johnson under arrest and transported him to the county jail.

After Johnson had spent three days in jail, prosecutors filed a criminal complaint against him, charging one count of recording a communication without permission in violation of the Privacy Act, and one count of resisting arrest. Prosecutors also moved for a determination of probable cause based solely upon a declaration from Chief Nelson that Johnson videotaped him "while [he] was making telephone contact with dispatch in an attempt to verify juvenile runaway information."

The County District Court dismissed the charges against Johnson finding, among other things, that Chief Nelson had no expectation of privacy because he had voluntarily exposed his communication to the public by parking his vehicle in a public place with the windows rolled down. Johnson filed a 1983 action and the Magistrate Judge granted judgment for defendants and dismissed Johnson's claims.

The United States Court of Appeals, Ninth Circuit reversed in part, affirmed in part, and remanded for further proceedings, holding that defendants were not entitled to qualified immunity for the following reasons:

• -The Privacy Act does not criminalize the recording of a "police officer in the performance of an official function on a public thoroughfare." (Alford v. Haner, 333 F.3d 972 (9^th Cir. 2003), and

• -There was no reasonable expectation of privacy in the police radio communications because Chief Nelson "knowingly expose[d]" them to the public. Additionally, because the communications over Chief Nelson's police radio could be commonly monitored, overheard and recorded by other officers and private citizens owning scanning devices, there was no reasonable expectation of privacy in those communications.

The Ninth Circuit concluded that Johnson was arrested without probable cause, in violation of the Fourth Amendment, because his conduct was not criminal and the law was sufficiently established so that Chief Nelson should have known that he had no lawful basis to arrest Johnson for violating the Privacy Act.

How does this affect your agency? Qualified immunity may not be available to the law enforcement officer who, like Chief Nelson, arrests an individual under the mistaken belief that what that individual is doing is criminal. The issue in this case arises when a citizen chooses to use a video or audio recorder when confronted by, or merely observing, an officer acting in his/her official capacity. There is no law prohibiting such recording in California. P.C. § 632 only prohibits the surreptitious recording of a conversation where one party reasonably believes it is confidential; the officer can rarely make such a claim while acting in the course and scope of employment.