McClung v. Employment Development Department, et al. 34 Cal. 4^th 467 (2004)

In January 1998, Lesli Ann McClung filed a complaint against the Employment Development Department (EDD) and Manuel Lopez. McClung alleged hostile work environment claims by sexual harassment, and failure to remedy a hostile work environment pursuant to the California Fair Employment and Housing Act (FEHA). The Superior Court initially granted summary judgment for the defendants - EDD et al.

The Court of Appeal affirmed the Superior Court's holding as to the EDD. However, the Court reversed the Superior Court's decision relating to defendant Lopez. The Court held that Lopez was not McClung's supervisor, but rather he was her coworker. Further, the Court also recognized that the California Supreme Court had previously held in Carrisales v. Dept. of Corrections (1999) 21 Cal.4^th 1132, 1140, that the FEHA did not "impose personal liability for harassment on non-supervisory coworkers." Nevertheless, the Court found Lopez personally liable. The Court applied an amendment to the FEHA § 12940(j)(3) which imposes personal liability on coworkers. However, the amendment to § 12940(j)(3) postdated the lawsuit brought by McClung. In applying the postdated amendment, the Court of Appeal found that the preexisting statement in § 12940(j)(2) "are declaratory of existing law," which supported its conclusion that the statutory amendment merely clarified the meaning of the prior statute.

Subsequently, the California Supreme Court reversed the Court of Appeal's holding as to Lopez. The Court concluded that § 12940(j)(3) did not apply retroactively to conduct predating its enactment. Quoting Marbury v. Madison (1803) 5 U.S. 137, 177, the California Supreme Court stated, "[i]t is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

The Supreme Court pointed out that under the fundamental principles of the Contitutional Separation of Powers, the Legislative Branch of government enacts laws. Subject to constitutional constraints, the Legislative Branch may change the law, but interpreting the law is a judicial function. The Supreme Court stated that after the judiciary definitively and finally interpreted a statute, as it did in Carrisales, supra, the Legislature may amend a statute to say something different. However, if a change is made, the law and its application are thereby modified.

How does this affect your agency? What occurred in this case was not within the employer's control. The lower courts made a judicial determination which the Supreme Court had to become involved in and ultimately correct. The law is now well settled that personal liability will attach to anyone who engages in the creation of a hostile, offensive, or intimidating work environment for other employees - a message that bears emphasizing on a repeated and programed basis within all organizations.

Page v. Los Angeles Co. Probation Dept. 123 Cal. App. 4^th 1135 (2004)

Marsanell Page began working for the Probation Department as a group supervisor in 1986, and was subsequently promoted to Detention Services Officer (DSO). In 1993, while attempting to break up a fight between two wards, Page was knocked down, hit her head on the floor, injured her knees, back, and hands and was disabled from working for a number of years. However, Page volunteered at the Department from 1998 until 2002. Eventually Page was able to return to work, but the Department did not offer her a position as a DSO even though the Department had filled more than 600 DSO positions, and did not offer Page any similar position. Page filed a grievance with the Los Angeles County Civil Service Commission (Commission).

The Commission hearing officer found that the Department attempted to provide a reasonable accommodation by offering Page a job as an Investigator Aid in January 2002. However, after the parties negotiated in good faith, Page nonetheless declined the offer on July 18, 2002. The hearing officer also found the Department did not violate the Americans with Disabilities Act, and concluded the Department had not failed to accommodate Page's desire to return to work as a DSO because she could not perform the essential functions of the position, even with reasonable accommodations. The hearing officer also concluded that the Department had no duty to accommodate Page by promoting her to a Deputy Probation Officer (DPO), because there was no position open for her that she was medically able to accept. The hearing officer further concluded that Page should be allowed to reconsider the position as an Investigator Aid.

Page and the Department objected to the recommended findings. As a result and without making its final ruling, the Commission set, discussed, and/or continued its hearing several times between October 2002 and May 2003. Page did not file a petition for writ of administrative mandamus challenging the acts of the Commission. While her administrative hearing was ongoing, Page filed a complaint of discrimination with the Department of Fair Employment and Housing (DFEH) and upon receiving a right to sue letter, on March 3, 2003 she brought a lawsuit against the Department for violations of FEHA.

The trial court sustained the Department's demurrer, without leave to amend. The trial court ruled that Page had failed to exhaust her administrative remedy before the Commission and had failed to challenge the adverse findings of the Commission's hearing officer.

The California Court of Appeal, Second Appellate District, Division Four, pointed out in affirming the trial court, that the Supreme Court in Schifando v. City of Los Angeles (2003) 31 Cal. 4^th 1074, held that government employees who believe they have suffered employment discrimination may choose to pursue remedies provided by either the Fair Employment Housing Act or internal grievance procedures such as a city, county or state civil service commission. Public employees who choose to file a complaint with the DFEH are not required to exhaust the remedies provided by a civil service commission.

The Schifando case made plain that having chosen a forum for discrimination claims, a public employee must exhaust "the chosen administrative forum's procedural requirements." Moreover, if a public employee has requested a non-FEHA administrative remedy such as a civil service commission hearing and obtained an adverse decision, the employee must exhaust judicial remedies by filing a petition for writ of mandate in the trial court, or the administrative decision will be binding on subsequent FEHA claims.

The Appellate Court concluded that Page proceeded headlong into the "procedural minefield." She filed her lawsuit before the Commission issued its final decision. Page never filed a petition for writ of administrative mandamus to overturn the adverse decision of the Commission. Instead, she filed a premature FEHA action which the trial court lacked jurisdiction to hear because she failed to exhaust both her administrative and judicial remedies. "Now, confronted with a possible time bar to pursuing FEHA claims, she asks us to revive her discrimination lawsuit notwithstanding her failure to exhaust the requisite administrative and judicial remedies. That we cannot do."

How does this affect your agency? While many public employees have the benefit of a less costly and protracted civil service commission process to redress a discrimination claim, the employee nonetheless must exhaust administrative and judicial remedies notwithstanding the risk that a FEHA claim may no longer be viable. The forum decision is determined by the employee, and cannot be dictated by the agency.

The People v. Thompson, 124 Cal. App. 4^th 96 (2004)

Madelene Orvos found Daniel Lyon Thompson passed out in a Ford Bronco in her apartment building parking space. After a neighbor asked him to move his vehicle out of Orvos' parking space, Thompson, who was intoxicated, threw an empty Vodka bottle on the ground and drove away. Orvos called 911 and followed Thompson in her car. After Orvos lost sight of Thompson, a police officer found the Bronco parked outside of Thompson's residence. The engine of the vehicle was still warm and Orvos identified it as the vehicle in her apartment parking space. Subsequently, two officers knocked on the house's door. Slavka Kovarick opened the door and told the officers that the Bronco belonged to Daniel, a man who rented a room from her, later identified as Thompson. Kovarick refused to let the officers enter the residence, telling the officers that she would get Daniel.

Kovarick returned and said that Daniel was asleep. The officers could see through the house into the back yard through the open door. They observed Thompson in the yard. The officers gestured for Thompson to come to the door. Thompson entered the house through the back door, then stopped about seven feet from the open front door. He told the officers that he did not want to talk with them. When Thompson turned and walked toward his bedroom, the officers entered the house, handcuffed Thompson, and forcibly took him outside. Thereupon, Orvos identified Thompson and made a citizen's arrest.

After the trial court denied Thompson's suppression motion, he pled guilty to driving with a blood alcohol of 0.08 percent or higher and resisting arrest. A majority of the Appellate Division of the Superior Court of Santa Barbara County affirmed the trial court's denial of the motion and judgment. The Appellate Division concluded that the warrantless entry into Thompson's residence did not violate the Fourth Amendment. The Court reasoned that Orvos, who had probable cause to make a citizen's arrest, somehow authorized the officers' entry into the residence.

The California Court of Appeal, Second Appellate District, Division 6, reversed the judgment of the appellate division and ordered the trial court to vacate Thompson's guilty pleas. The Court ordered the trial court to grant the motion to suppress and to enter a new order.

The Appellate Court pointed out that it was a basic principle of Fourth Amendment law that a warrantless entry into a suspect's home was presumptively unreasonable. The C`ourt noted that in People v. Schofield (2001) 90 Cal.App.4^th 968, 975, citing Welsh v. Wisconsin (1984) 466 U.S. 740, it expressly cautioned that a peace officer may not enter a residence to effect a driving under the influence arrest simply because evidence may be destroyed or concealed by the passage of time. The Court stated that the California Supreme Court recently reaffirmed these principles in People v. Celis (2004) 33 Cal.4^th 667.

The Appellate Court noted that in the instant case, the officers did not observe Thompson driving, follow in hot pursuit, or arrest him at his doorway. Thompson refused to come outside or talk to the officers. The officers, without permission and contrary to the express objection of the homeowner, forcibly entered the residence to detain Thompson and take him outside for possible identification and citizen's arrest by Orvos. The Court found that the evidence did not support the finding that Thompson was likely to flee and again drive while intoxicated since the Bronco was parked in the street where another officer was stationed.

The Court pointed out that a private citizen may expressly or impliedly delegate the physical act of arrest to an officer and that no magic words are required. However, an officer's authority to assist in a citizen's arrest does not include the right to forcibly enter a driving under the influence suspect's residence, detain him, and remove him outside for possible identification and possible arrest. Here, the court pointed out, the citizen's arrest was made after Thompson was handcuffed, forcibly removed from the residence and identified by Orvos.

The Court concluded that "[w]e decline the invitation to carve out a citizen's arrest "warm pursuit" exception to the Fourth Amendment."

How does this affect your agency? Keeping abreast of not only statutory law, but also case law, is mandatory for all peace officers - especially those in the field. There is an individual and collective obligation to keep officers informed of search and seizure rules through a combination of training bulletins, in service training, and roll call briefings. This vital area cannot be left to periodic reminders.