CASE UPDATES

By: Martin J. Mayer

Non-supervisory Personnel Cannot Be Sued by Coworkers for Sexual Harassment Under California's Fair Employment Housing Act

CARRISALES v. DEPT. OF CORRECTIONS 21 Cal. 4th 1132 (1999)

Maryann Carrisales, an employee of the Department of Correction, sued the Department, two of her supervisors, and a coworker for sexual harassment in violation of the Fair Employment Housing Act (FEHA). Carrisales alleged that her coworker repeatedly sexually harassed her and that the defendant supervisors knew of the sexual harassment but failed to take immediate and appropriate corrective action.

The trial court granted summary judgment in favor of each defendant.

The Court of Appeal reversed the grant of summary judgment as to the Department, finding a triable issue of fact regarding whether the Department and Carrisales' supervisors took immediate and appropriate corrective action. It affirmed the grant of summary judgment as to the supervisors, holding that they could not be held personally liable under the FEHA for sexual harassment that they neither assisted, encouraged, nor participated in themselves. The Court of Appeal also affirmed the grant of summary judgment in favor of Carrisales' coworker, holding that "a nonsupervisory coworker cannot be held liable for sexual harassment under FEHA."

The California Supreme Court addressed only the issue of whether an employee may be personally liable to a coworker for sexual harassment under the FEHA, and concluded that the FEHA does not apply to actions between coworkers, not involving a supervisorial relationship.

/ How does this impact your department?

Department's should not relax any internal requirements imposed on supervisors to take immediate and appropriate action to curb all offensive conduct and to report and investigate harassment or any other type of discriminatory conduct. The Act's language requires the employer to take action. Supervisors represent the employer and therefore the Act is implemented if the supervisor is the harasser and/or fails to take appropriate action to prevent harassment by others.

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Punitive Action Against Peace Officer Requires An Administrative Appeal That Comports To Due Process Regardless of Language in the MOU

GIUFFRE v. SPARKS, KERN CO. SHERIFF 76 Cal.App.4th 1322 (1999)

During an argument with his girlfriend Deputy Giuffre threatened suicide and when questioned by superiors admitted making the statement, but denied any intention of suicide. Giuffre was suspended from the SWAT team for a period of 6 months, having been a member of the team for 11 years. Prior to the expiration of the six-month suspension, Giuffre became involved in a dispute with his ex-wife, Winnifred Doane, over child visitation issues and threatened to kill her.

The assistant sheriff issued a written reprimand to Giuffre stating that the threat to Doane constituted a "technical violation of the law" as well as a violation of the Department's Policy and Procedures Manual. The reprimand also stated that as a result of the two incidents, it was the intention of the sheriff's department to remove Giuffre from the SWAT team and issue a referral to the Employee Assistance Program. Giuffre was also notified that he was entitled to "appeal this action through your chain of command to the Sheriff-Coroner" in accordance with department policy.

The department policy followed provisions of the MOU, which provided in article II, section 3, paragraph 11, "that an employee departmentally reassigned by operation of Subsection (II) a. of this section has the right, under California Government Code §3300, et seq., to appeal any alleged punitive action at an administrative hearing. An administrative hearing for this purpose is a hearing held by a senior officer within the Sheriff's Department at the rank of Assistant Sheriff or above. This administrative hearing procedure is separate and apart from the grievance procedure."

The procedure established for the administrative appeal provided that the officer could submit a written account of the events together with any pertinent documentation. The sheriff-coroner would then review the documentation, meet with the officer, and allow the officer to state his position. Giuffre and his attorney participated in a hearing with the sheriff-coroner and subsequently the sheriff-coroner, Carl Sparks, issued a letter to Giuffre upholding the written reprimand and removing the deputy from the SWAT team. Because SWAT team members receive an additional 5 percent "skill" pay for serving on the team, a consequence of being removed from the team was a reduction of Giuffre's pay.

Giuffre filed a petition for writ of mandate, contending that the action taken against him constituted a punitive action within the meaning of Government Code § 3303, thus entitling him to an administrative appeal pursuant to section 3304. He asserted that he had been denied his administrative appeal right, and requested the county be directed to afford him an appeal before the civil service commission. In it's denial of the petition for writ of mandate, the Kern County Superior Court found that the meeting held with the sheriff-coroner afforded Giuffre "the appeal procedure and hearing to which he was entitled." The California Court of Appeal Fifth Appellate District reversed and remanded, concluding that Giuffre was not accorded his full administrative appeal rights.

The court noted that although section 3304 specified that the officer must be provided an opportunity for an administrative appeal, it does not specify how the appeal process is to be implemented.

At a minimum, section 3304 has been held to require that the officer be afforded an evidentiary hearing before a neutral fact finder.

The court concluded that it did not disagree with the county's contention that it is within the purview of local governments to establish the administrative appeal procedures, and noted that it was not purporting to establish those procedures. The issue, according to the court, was whether the procedures, as set forth in the MOU and departmental policy, satisfied due process and section 3304, and concluded they did not.

/ How does this impact your department?

Over the past decade Government Code §§ 3303 and 3304 have been interpreted by the courts to provide, when punitive action has been imposed, an entitlement to a full evidentiary hearing before a neutral fact finder. The California Supreme Court has even established that when an officer suffers a pay reduction, regardless of the reason asserted, such reduction shall be considered to be punitive. These entitlements are afforded to each officer, independently, and are not subject to be negotiated away. Administrative appeal procedures should be reviewed to insure they are "due process" compliant.

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Arbitrator's Reinstatement of Employee Who Threatened Another Employee Violated Court Stay Away Order and Public Policy

CITY OF PALO ALTO v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 715 715 77 Cal.App.4th 327 (1999)

Danton Camm supervised a work crew in the Water, Gas, Wastewater Operations section of the City's Utilities Department and commonly threatened those working with him with physical violence if they did not perform. Brian Bingham informed Camm that he had complained to a supervisor about Camm and during the ensuing exchange Camm threatened to shoot Bingham, his wife and their new baby if he lost his job.

Camm was arrested for making a terrorist threat, spent nine days in jail, and later pled guilty to disturbing the peace. The City, on behalf of Bingham, obtained an injunction against Camm which provided that Camm must not make any contact with Bingham and must stay at least 100 yards away from Bingham, Bingham's residence, Bingham's place of work, Bigham's children's school or place of child care, and the City's "Utility Department - Water/Wastewater/Gas Division work crew sites." The City terminated Camm. The disciplinary action was appealed and submitted to binding arbitration pursuant to the MOU.

Although recognizing the danger of workplace violence and the reality that the City had previously experienced a fatal incident of workplace violence, and acknowledging that these problems required employers to "take reasonable means to protect their employees and the public" from workplace violence, the arbitrator nonetheless, found the City's termination unsupportable on the merits. The arbitrator impliedly found that the City has not evenhandedly enforced its workplace violence policy and ordered Camm reinstated to his former position with back pay.

The City petitioned to vacate the arbitration decision, but the trial court upheld the arbitrator's decision.

The California Court of Appeal, Sixth Appellate District, reversed the trial court and vacated the arbitrator's order. The court noted while Camm's reinstatement did not violate the public policy requiring employers to provide a safe workplace by adequately addressing threats of violence, a different public policy conflict was presented by the injunction issued against Camm. The Court concluded that it saw no way in which the arbitrator's award reinstating Camm could have been put into operation without Camm disobeying the injunction. Thus, the arbitration award of unconditional reinstatement was irreconcilable with the public policy requiring obedience to court orders.

/ How does this impact your department?

The normal rule of limited judicial review cannot be avoided except in those rare cases where "according finality to the arbitrator's decision would be incompatible with the protection of a statutory right" or where the award contravenes "an explicit legislative expression of public policy." Departments should have their legal advisors review each termination reinstatement to insure the decision is not contrary to public policy or is incompatible with a statutory right.

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Jury Finds Officer=s Misconduct Was Based On Racial Bias

PRICE v. KRAMER 2000 Daily Journal D.A.R. 345, 2000 WestLaw 14442 (9th Cir. Cal.)

Lohren Price, Daniel Mason, and Nicholas Cramer, all seventeen years of age, attended their last day of prep school at Harvard-Westlake Preparatory School in Los Angeles. That evening, the boys decided to celebrate their graduation by going to see the Eddie Murphy movie, Beverly Hills Cop 3. After the movie, they drove south, toward Mason's house, taking Crenshaw Boulevard. Price and Mason, who are both black, were in the front seat of Price's mother's car, a 1979 Chevrolet. Cramer, who is white, was lying down on the back seat because he was tired.

Approximately seven to ten minutes away from Price's and Mason's homes in Los Angeles and barely within the municipal boundaries of Torrance they passed a Torrance patrol car going in the opposite direction. Officer Kramer testified that when the cars passed, he saw only the two black teens and immediately made a U-turn, accelerated to catch up, and proceeded to follow from approximately two car lengths behind.

Price pulled into a gas station for fuel with the patrol car pulling in and stopping behind his vehicle. The officers stared directly at the boys, then drove around, parked parallel to Price's car continuing to stare, pulled out of the station into a parking lot across the street and continued their surveillance. When Price pulled out of the station the officers followed, running a red light to catch up. The officers activated their lights and Price pulled over immediately.

The officers testified that they made the stop because of defective taillight and seatbelt violations. Officer Kramer testified that he first observed these traffic violations after the car left the gas station.

Officer D'Anjou came to the driver's side of the car with gun drawn and pointed directly at Price. Officer Kramer approached from the passenger side and pointed his weapon at Mason's head. The teens were removed from the car one at a time and Officer Kramer, who weighed 300 pounds and bench pressed nearly 500 pounds, conducted a pat-down search of each boy, grabbing each boy's testicles, pulling down on, and forcefully squeezing, them. All three boys experienced severe pain, nausea and extreme soreness.

Officer Kramer then searched the vehicle, including opening the glove compartment and hood, where he searched the engine compartment. In the trunk he found a box of papers belonging to Marilyn Price, which he emptied out and rummaged through. Officer Kramer then tested all the lights on the car after the search failed to turn up any evidence of wrongdoing. Officer D'Anjou gave Price a citation for "inoperative turn signals" and for not wearing his seat belt. Officer Kramer issued Nicholas Cramer a citation for not wearing a seat belt and told Mason, "You're not supposed to be here."

The officers and city appeal the judgment in favor of the plaintiffs after a trial before a jury.

The United States Court of Appeals Ninth Circuit held that the jury had sufficient evidence to conclude the officers engaged in wrongful conduct a reasonable officer would have known was unlawful. Officers are not entitled to qualified immunity for stopping a vehicle without probable cause or reasonable suspicion, especially when the stop includes detention and interrogation at gunpoint. Here the stop lasted over an hour.

Because of the inconsistencies in the officers' story, the jury could have believed that the search was not based on an offense but rather on an unwarranted attempt to find incriminating information. The entire theory that the officer stopped the car based on reasonable suspicion due to a number of related factors controverted their principal defense that they stopped the vehicle for a defective taillight and seatbelt violations. The search included areas that had no plausible connection to vehicle violations and racial bias was an obvious and appropriate subject to explore given the nature of the case.

/ How does this impact your department?

Officers must continually be reminded of their responsibility to enforce the laws equally, regardless of the persons age, race, gender and/or appearance. Interruption of a citizen's right to freely travel from place to place requires more than mere suspicion, and the officer must articulate facts that lead him/her to reasonably believe detention was warranted. Regardless of any legal justification for a pat-down search, officers can not justify causing extreme pain by deliberately grabbing, pulling and squeezing the testicles of their male detainees. Conduct of this nature lies outside the protective realm of qualified immunity.

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Due Process Does Not Require Pre-deprivation Hearing Before Demotion In Lieu Of Layoff

DUNCAN v. DEPT. OF PERSONNEL ADMINISTRATION 2000 Daily Journal D.A.R. 1131, 2000 WestLaw 92250 (Cal.App.2 Dist.)

In March 1990 Robert Duncan went to work for the California Department of Insurance (DOI) and subsequently became a permanent civil service employee. In August 1996 DOI discussed the "current financial crisis [facing us]" in a "Special Report" to employees, explaining that the crisis was due in part to lawsuits which had successfully challenged the DOI's imposition of certain fees and assessments on insurers. The report stated that DOI planned to take several steps to cut costs, and stated that "it will be necessary to reduce staff by 95 positions ... ." The report also addressed the subject of how employees would be chosen for layoff.

The DOI informed Duncan in writing that he had been selected for layoff and sent Duncan's collective bargaining representative a letter, stating that the layoff was scheduled for February 1, 1997, and would impact a minimum of 26 employees.

Duncan was notified that he would be laid off effective March 14, 1997, however his seniority score would allow him to demote in the same location and that he could appeal the layoff decision to the Department of Personnel Administration within 30 days. Duncan decided to accept a demotion, reducing his monthly salary.

The ALJ denied Duncan's appeal, sustaining his demotion, and his petition for rehearing was denied. Duncan then filed a petition for a writ of mandate which the trial court denied.

The California Court of Appeal Second Appellate District affirmed, holding that public employees were not entitled to pre-deprivation hearings before a demotion in lieu of a layoff, and that post-deprivation hearings were sufficient.

/ How does this impact your department?

Although layoffs are not the norm for criminal justice agencies, financial crunches do occur. Therefore a part of any long term growth plan would included a worse case scenario. Layoffs must be based on objective criteria, with as much advance written notification to the employee and also the bargaining unit. The notice should include any "bumping," "demotion," or other rights personnel rules provide.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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