Pre-booking Blanket Strip-Search
Policy Unconstitutional

WAY VS. CO. OF VENTURA 445 F.3d 1157 (2006)

The United States Court of Appeal, Ninth Circuit, had to decide whether Ventura County Sheriff Bob Brooks and Deputy Karen Hanson were entitled to qualified immunity for conducting a strip search, with a visual cavity inspection. Noelle Way was subjected to the search during the booking process, at a pretrial detention facility, on a misdemeanor charge of being under the influence of cocaine or methamphetamine, in violation of California Health & Safety Code § 11550(a).

The Ninth Circuit concurred with the trial court that a blanket strip-search policy, allowing such a search for an arrestee charged with any controlled substance offense before placement in the general jail population, was unconstitutional. The Ninth Circuit opined, contrary to the trial courts holding, that it was not clearly established at the time of Way = s booking that strip searching persons arrested on drug charges was unreasonable. However, the Ninth Circuit reversed the district court and granted qualified immunity for the sheriff and his deputy.

HOW DOES THIS AFFECT YOUR AGENCY?

This case now establishes that blanket strip-search policies for all narcotic detainees prior to booking are unconstitutional and the "qualified immunity" defense will not be available in future matters of this nature. There will have to be some articulable conduct on the part of the detainee to justify a "body cavity" visual inspection. Current policy should be submitted to the agency's legal advisor for revision.

Appearance and Grooming Standards
Not Discriminatory Where Gender Differences
Do Not Create A Substantial Burden

JESPERSEN VS. HARRAH'S 444 F.3d 1104 (2006)

Darlene Jespersen, was terminated from her position as a bartender at the sports bar in Harrah's Reno casino not long after Harrah's began to enforce its comprehensive uniform, appearance and grooming standards for all bartenders. The standards required all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any. Jespersen refused to comply with the makeup requirement and was terminated for that reason.

The district court granted summary judgment to Harrah's on the ground that the appearance and grooming policies imposed equal burdens on both men and women bartenders because, while women were required to use makeup and men were forbidden to wear makeup, women were allowed to have long hair and men were required to have their hair cut to a length above the collar. The district court also held that the policy could not run afoul of Title VII because it did not discriminate against Jespersen on the basis of the "immutable characteristics" of her sex. The district court further observed that the Supreme Court's decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), which prohibited discrimination on the basis of sex stereotyping, did not apply to this case because in the district court's view, the Ninth Circuit had excluded grooming standards from the reach of Price Waterhouse .

The United States Court of Appeals, reaffirmed Ninth Circuit law regarding appearance and grooming standards. Jespersen failed to present evidence sufficient to survive summary judgment on her claim that the policy imposed an unequal burden on women. The Ninth Circuit held that appearance standards, including makeup requirements, may be the subject of a Title VII claim for sexual stereotyping, but here Jespersen failed to create any triable issue of fact that the challenged policy was part of a policy motivated by sex stereotyping.

HOW DOES THIS AFFECT YOUR AGENCY?

This case reaffirms that agency policies regarding appearance and grooming standards which may have slight gender specific differences are not necessarily discriminatory. Where a policy singles out only one gender, and the policy requirement(s) create a substantial burden on that gender, then a cause of action for sexual stereotyping may be supported. The burden of proof will rest with the individual employee bringing the action. Policies of this nature should be discussed with the agency's legal advisor.

Unique Defense Arguments May Be
Considered By Jury In Sexual
Harassment Cause Of Action

LYLE V. WARNER BROTHERS TELEVISION 38 Cal.4th 264 (2006)

The producers and writers of a popular television show raised a unique defense to Lyle = s claim of sexual harassment. While admitting the use of sexually coarse, vulgar and demeaning language in the workplace, they maintained that such language was essential to the creative process of developing scripts for the television show, "Friends."

The California Court of Appeal, Second District, concluded that "creative necessity" was not an affirmative defense to a cause of action for sexual harassment, but is a factor a jury can consider, along with other factors, in determining whether defendants' conduct created a hostile work environment for the plaintiff.

The Court of Appeal further held that the trial court erred in granting summary adjudication to some of the defendants on plaintiff's causes of action for sexual and racial harassment. However, the trial court correctly granted summary adjudication as to all defendants on Plaintiff's causes of action for termination and retaliation in violation of the Fair Employment and Housing Act (FEHA) and common law.

HOW DOES THIS AFFECT YOUR AGENCY?

Unique arguments may win the day when presented to a jury, which is permitted to consider such things as "creative necessity," as was the case here, or "that's how cops talk," which has been raised in the past to defend hostile work environment claims. However, this case is the exception to the general rule prohibiting sexually harassing behavior in the workplace (including jokes, comments, pictures, etc.). Although common sense is not always present during conversations, individuals must be aware of, and be sensitive to, co-workers. The circumstances in this case were unique and would not be found in a normal work environment.

Discipline Time Barred:
Administrative Appeal Process
Violated Officer's Procedural
Due Process Right

Sanchez v. City of Los Angeles, et al, 139 Cal. App.4th 1297

Ronald Sanchez, a police officer with the City of Los Angeles , appealed a judgment denying his petition for writ of administrative mandate wherein he challenged the Department's downgrade of his pay grade position from Police Officer III to Police Officer II. The threshold issue was whether the punitive action of downgrading of Sanchez's position was barred by the one-year statute of limitations set forth in the Public Safety Officers Procedural Bill of Rights Act.

Within the one-year period following the Department's discovery of the operative facts giving rise to the proposed discipline, the Department proposed disciplinary action consisting of a 20-day suspension. With respect to downgrade considerations, the paperwork, at that time, stated, "None." Accordingly, the California Court of Appeal, Second District held that the Department's subsequent decision, after the expiration of the one-year period, to pursue a downgrade, in addition to the suspension, was untimely. Therefore, the Court opined, Sanchez was entitled to reinstatement to his position as Police Officer III.

Further, the Appellate Court stated, "even assuming the punitive action of downgrade was not time-barred, the Chief's decision upholding the downgrade could not be sustained." The Chief, who initially authorized Sanchez's downgrade, was also the final decision-maker on Sanchez's administrative appeal, which violates procedural due process. (Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155.)

HOW DOES THIS AFFECT YOUR AGENCY?

The one-year statute of limitations on taking disciplinary action against an officer, GC 3304(d), must be strictly followed. Additionally, the same person who authorizes punitive action cannot, thereafter, hear the officer's administrative appeal.

Appellate Court Holds Termination
For Untruthfulness Was
Abuse Of Administrative Discretion

Pinto v. City of Visalia, 2006 Cal. LEXIS 9524 [This case was unpublished by the California Supreme Court in August 2006].

The City of Visalia terminated police officer Bryan Pinto for (1) failing to report a sexual relationship between a minor and an adult; (2) failing to report a sexual assault between an adult and a minor; (3) lying during the course of a criminal investigation; and (4) encouraging an involved party to lie during the course of a criminal investigation. Pinto appealed to the city manager and requested an administrative hearing. After an evidentiary hearing, an arbitrator found the evidence sufficient to sustain the first three allegations of misconduct and that each act was sufficient to sustain Pinto's termination. The City ratified the arbitrator's decision.

Pinto challenged the City's findings of misconduct with respect to the first two incidents. He requested the superior court to either set aside the City's decision and restore him to employment, or remand the matter to the City with directions to set aside the decision to terminate him and impose a lesser penalty. The trial court found the evidence insufficient to support the misconduct findings with respect to the first two allegations and that the City abused its discretion when it terminated Pinto for his admission of lying. The trial court remanded the matter to the City to impose a penalty less than termination and awarded Pinto his attorney's fees and costs. The California Court of Appeal, Fifth Appellate District affirmed.

The Appellate Court pointed out only one of the acts was supported by substantial evidence, namely the admission that Pinto did not tell the truth when asked during the criminal investigation whether he had a "relationship" with a person named "Aaron." In fact, Pinto met Aaron on the internet and had a sexual liaison with him. Aaron subsequently had a sexual encounter with the minor who was the subject of the charges brought against Pinto.

The Appellate Court stated that it believed termination was an excessive penalty given the one supported incident of misconduct. The Appellate Court opined that the arbitrator mis-characterized the incident, finding that the transcript of Pinto's interview revealed Pinto never denied knowing who "Aaron" was. Pinto admitted, before being asked whether he had a "relationship with Aaron," that he knew who Aaron was, had met him, and had talked to him in person. After admitting he knew Aaron, Pinto then answered "No" when asked whether Pinto had "a relationship with Aaron at all, ever?" Although the question did not ask specifically whether Pinto had "sex" with Aaron, apparently, the Appellate Court noted, Pinto believed that was what the investigator was asking and, therefore, admitted he was not candid with the investigator when he denied having a "relationship."

The Appellate Court concluded that "... the record reveals a lack of evidence directly showing how Pinto's lack of candor adversely affected the public service. The harm in Pinto's response to ... was primarily to himself, as it lessened his credibility in the eyes of the investigating officers." The Appellate Court then editorialized: "While we cannot say with absolute certainty that Pinto will never have to face questioning about his misconduct at some point during his career on the force, if that did occur, he would not be the first officer forced to confront a prior act of dishonesty. The human condition being what it is, few witnesses come to the stand with an unblemished record of telling the truth." (Emphasis added.)

HOW DOES THIS AFFECT YOUR AGENCY?

While this Court rationalizes and defines, in it's opinion, what harms the public service, it appears to discard what, heretofore, has been a strict "standard of conduct" followed by law enforcement. This case should not deter Chiefs and Sheriffs from "going to the mat" when confronted by an employee who is dishonest during an investigation. This case also reaffirms that agencies should have a review process that provides meaningful and candid evaluations of an IA before it is considered the end product for disciplinary action.