CASE UPDATES

By: Martin J. Mayer

RELEVANT INCIDENTS OUTSIDE 45 DAY EEOC PROCEEDING ARE ADMISSIBLE IN TITLE VII SEXUAL HARASSMENT ACTION

ANDERSON v. RENO 190 F.3d 930 (1999)

Kathleen Anderson, who had been a special agent of the FBI for 20 years, brought an action under title VII alleging that she was sexually harassed by Bureau employees, including some of her supervisors, over a period of 11 years. Anderson alleged (1) hostile work environment, providing examples of relevant conduct from 1986 to 1994; (2) disparate treatment, in that her supervisor refused to provide her with the support necessary to conduct the organized crime investigation to which she was assigned; and (3) retaliation for initiating EEOC administrative counseling (she was reassigned to a unit that significantly impaired her chances of advancement).

Excluding any events that occurred prior to August 6, 1994, because these incidents occurred more than 45 days prior to Anderson's initiation of EEOC counseling, the district court found no evidence of a hostile work environment and granted the defendants summary judgment motion on all counts.

The United States Court of Appeals Ninth Circuit reversed and remanded, holding that events occurring outside the 45-day time limitation can form the basis of a Title VII claim if the incidents are part of an ongoing unlawful employment practice, serving as relevant background evidence to provide context for timely claims. The court noted that the events excluded by the district court demonstrated a pattern of sexual harassment that started years ago and continued until Anderson filed her complaint. The incidents were not isolated, all were related and of the same kind.

As to Anderson's disparate treatment and retaliation claims, witnesses' depositions gave conflicting statements in connection with the actual reason Anderson was transferred after she initiated her EEOC claim. Her 1997 retaliation claim raised the same theory of discrimination as, and was directly related to, the other claims.

/ How does this impact your department?

This case reaffirms that raising a statutory time limit may be an imperfect defense. Conduct which occurs outside the statutory limitation may form the basis of a Title VII claim if the incidents are part of an ongoing unlawful employment practice. It is therefore always in the department's best interest to take swift and affirmative action whenever allegations of this nature arise.

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NO CAUSE OF ACTION FOR CONSTRUCTIVE DISCHARGE WHERE EMPLOYEE RESIGNS MONTHS AFTER HARASSMENT CEASED AND HARASSERS DISCIPLINE

MONTERO v. AGCO CORP 1999 WL 759966 (9th Cir.)

Carrie Montero was employed by AGCO Corp. as a secretary, their only female employee. Montero complained to Karin Rudin, AGCO's human resources manager, that she was being sexually harassed by Glen Carpenter, a manager, Russ Newmann, a supervisor, and Ron Weeks, a co-worker, all who had daily contact with Montero.

Rudin and Jamie Berk, Carpenter's immediate supervisor, met with Carpenter, Newmann, and Weeks, who admitted that they had harassed Montero, but not to the degree Montero claimed. Rudin fired Carpenter and reprimanded Newmann and Weeks. Two years later Montero resigned and sued AGCO for sexual harassment.

The district court granted summary judgment to AGCO, finding AGCO had exercised reasonable care to prevent and promptly correct the sexually harassing behavior and that Montero failed to take advantage of the preventative and corrective opportunities provided by AGCO.

The United States Court of Appeals Ninth Circuit affirmed the trial court finding that Montero was unable to prove a constructive discharge because, by the time that she resigned, she was not subject to intolerable working conditions. Montero did not resign until after Carpenter was fired and Newmann and Weeks were reprimanded. AGCO demonstrated that it exercised reasonable care to prevent and correct any sexually harassing behavior that was occurring or could occur in the future.

AGCO had a policy already in place prohibiting sexual harassment at the time that Carpenter was harassing Montero and all employees had a copy of the policy, including Montero. The court noted that it took only 11 days after the complaint was made before AGCO fired Carpenter and reprimanded Newmann and Weeks. Further AGCO successfully showed that Montero unreasonably failed to take advantage of the company's preventative and corrective opportunities earlier, even though she knew of their existence.



/ How does this impact your department?

This case, as well as recent U.S. Supreme Court decisions, reaffirms that, as long as agencies clearly spell out agency policy, and employee's rights and protections, coupled with an independent investigation when necessary and swift, affirmative and reasonable action based on the investigation, liability will be minimal. When the employee does not avail him/herself of the protections of the agency policy then liability might not attach.

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UNPAID VOLUNTEER NOT AN EMPLOYEE OR SERVANT OF CITY FOR RESPONDENT SUPERIOR PURPOSES

MUNOZ v. CITY OF PALMDALE 75 Cal. App.4th 369 (1999)

Aurora Munoz attended a social function at the City's Senior Center and was injured when a coffee pot fell from a serving shelf and splashed hot coffee onto her leg. Ron Helmer, an unpaid volunteer at the Center, had placed the pot on the shelf. Helmer has voluntarily provided free services to the Center since 1983. His voluntary services included setting up tables and chairs, making coffee, and occasionally mopping the floors. Helmer has never asked for or received either payment or benefits of any kind in return for his services. Helmer has freely performed these services without compulsion or coercion stemming from any court order, community service decree, or other obligatory requirement. Helmer has never received any training from the City concerning the performance of his voluntary services.

The trial court entered summary judgment for the defendant City of Palmdale after concluding, as a matter of law, that the unpaid volunteer who had placed the pot on the shelf was neither an employee nor servant for respondent superior liability purposes. The California Court of Appeal Second Appellate District, Division One, applying the volunteer exclusion of Labor Code section 3352, subdivision (i), and public policy affirmed summary judgment for the City.

/ How does this impact your department?

Caution should be exercised not to fall into the abyss of believing that all unpaid volunteers are not employees, therefore excluded from creating liability for the agency. Although Labor Code 3352, subdivision (i) provides that "Employee excludes the following . (i) any person performing voluntary service for a public agency or a private nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses," the volunteer exclusion does not apply to reserve or auxiliary sheriff or police officers while performing peace officer duties (§ 3362.5), certain persons assisting law enforcement officers (§ 3366), and certain persons voluntarily rendering technical assistance to fire and law enforcement officers (§ 3367).

Additionally, one who volunteers services in exchange for community service credit against a court-imposed fine is receiving compensation and, thus, not subject to the volunteer exclusion. (Arriaga v. Co. of Alameda (1995) 9 Cal.4th 1055). Individuals who assist law enforcement agencies, although referred to as volunteers by agency definition, should be looked upon as employees for liability purposes and afforded the requisite degree of training for those duties individuals are expected to perform, and also those functions it would be reasonably foreseeable they would have to perform.

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REASSIGNMENT MAY BE MADE WITHOUT A HEARING IF NOT FOR DISCIPLINARY REASONS.

DOBBINS v. COUNTY OF SAN DIEGO CIVIL SERVICE COMMISSION 75 Cal. App. 4th 125 (1999)

A Sergeant in the San Diego County Sheriff's Office, Karen Dobbins, was transferred from her assignment as a result of her physical inability to perform that particular job. A second Deputy was also transferred from his initial assignment as a result of his repeatedly falling asleep while on duty which apparently was a result of a medical problem as well.

Each Deputy grieved the reassignment under the County's Civil Service rules claiming that they were entitled to a hearing alleging that any removal or reassignment from an original position entitled them to a hearing. In addition, the second Deputy claimed that he suffered a loss in compensation as a result of having restrictions placed on his working overtime due to his medical problem.

The court held that the Civil Service rule in question entitled an officer to a hearing if that officer had been reassigned for disciplinary reasons. Both Deputies acknowledged that they were removed from their positions for non-disciplinary reasons but nonetheless they claimed they were entitled to a hearing. The court held that "it is well established that an employee enjoys no fundamental or vested right to continuation in a particular job assignment." More specifically, the court went on to state that "an appointing authority must have the flexibility to utilize its personnel in a manner appropriate for the overall needs of the agency, as well as the employees."

As to the issue raised by the second Deputy that he lost compensation, the court stated that there was no ". . . direct, discipline-related reduction in compensation" that would implicate the hearing requirement of that rule."

/ How does this impact your department?

If your department has a rule similar to the one in this case, or if a peace officer claims that a reassignment was punitive in nature pursuant to the Peace Officer's Bill of Rights, the Department should be able to successfully defend against that action so long as it is able to show that the reassignment was not for disciplinary reasons. As always, it is incumbent upon the employer to justify the actions that it took and if it can do so, as in this case, it should be able to prevail.

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ATTORNEY FEES WILL BE AWARDED IF COURT ACTION NECESSARY TO ENFORCE THE PUBLIC RECORDS ACT

FONTANA POLICE DEPARTMENT v. VILLEGAS-BANUELOS 74 Cal. App. 4th 1249 (1999)

Pedro Villegas-Banuelos was arrested by the Fontana Police Department pursuant to information received by them from the Long Beach Police Department regarding an outstanding homicide warrant. In fact, it was the brother of Villegas-Banuelos who was wanted, not the person who was arrested. Subsequent to his release, he requested copies of the tapes recording telephone conversations between the two police departments.

The City of Fontana refused to provide that material unless he agreed to allow them to edit out portions which the Police Department found embarrassing and/or irrelevant. When Villegas-Banuelos would not agree to those conditions, he indicated he would seek to compel production through the Public Records Act. Prior to Villegas-Banuelos filing his petition for a writ, the Fontana Police Department filed a petition for a protective order requesting permission to delete the embarrassing and irrelevant material.

The court denied the Department's petition but also declined to award attorney's fees to Villegas-Banuelos on the basis that he was not a plaintiff who initiated a court proceeding resulting in the release of the materials.

The California Court of Appeal held that a litigant was entitled to attorney's fees under the Public Records Act even though he was not technically the plaintiff and the fact that the Department preemptively filed its protective order petition did not effect the litigant's entitlement to attorney's fees under Government Code §6259(d).

Additionally, there is nothing in the law which allows the public sector entity to edit the material which has been requested. The court stated that "appellant was legally entitled to the unedited tapes which Fontana refused to produce until ordered to do so by the trial court. Therefore, the lawsuit was the motivating factor behind production of those tapes."

The court went on to state that "if we were to adopt Fontana's view that only the party who initiates the proceeding with respect to disclosure may recover attorney's fees and costs, then public agencies could defeat recovery of fees in every instance by doing exactly what Fontana did in this case: beating the party seeking disclosure to the courthouse and filing a petition for a protective order. That, in turn, would defeat the objective of the Public Records Act which is to increase freedom of information by affording the public access to information in the possession of public agencies."

/ How does this impact your department?

This very recently decided case, once again, reinforces the public policy that public entities will pay attorney's fees if the court concludes that it withheld documents which are required to be released pursuant to the Public Records Act. The fact that the Department initiates litigation or that the individual or entity requesting the documents initiates the litigation is irrelevant. The primary purpose behind the legislature establishing an "entitlement" to attorney's fees is to reduce the incentive of a public entity to require or cause litigation arising out of a Public Records Act demand.

It is imperative that when the Public Records Act demand has been made that advice and guidance be secured from legal counsel knowledgeable in the Public Records Act and the cases interpreting it.

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ADA REQUIRES THAT REQUESTS FOR ACCOMODATION BE ADDRESSED

NORRIS v. SYSCO CORP. NORRIS v. SYSCO CORP. 99 DAR 9587; (1999) WL 710354 (9th Cir (CAL)

Brenda Norris was employed by the Sysco Food Services selling food related supplies and equipment. Her job required a great deal of long distance travel as well as occasionally moving and lifting heavy objects. As a result of a series of injuries to her back and knee, she was required to take disability leave. While on disability leave, she asked the defendant for certain accommodations to be made at work which would then enable her to continue her employment status. The defendant never responded to the plaintiff's requests and the jury found that it failed to provide reasonable accommodations under the Americans With Disabilities Act (ADA) and awarded her $300,000 in compensation in addition to $247,840 in attorney's fees.

The Ninth Circuit U.S. Court of Appeal affirmed the lower court decision stating that "although there was no precise refusal to reinstate Norris to her position, the jury could have reasonably found that (the defendant) offered no proof of a reasonable accommodation to assist Norris in coming back to work, despite her requests for accommodation. Therefore, even though (the defendant) did not absolutely and directly refuse to reinstate Norris, it did not offer to accommodate her either, and the failure to do this made the jury's answers reconcilable."

/ How does this impact your department?

Once again, it must be recognized that when ADA is involved, the employer has a burden of showing that it did that which the law requires. Ignoring an employee's request for what might or might not be reasonable accommodations will work to the detriment of the employer. It is far more appropriate to respond to any request for a work accommodation and thereafter determine whether or not it is reasonable and, if so, whether or not the employer is capable of providing the accommodation requested by the employee. Ignoring these requests will not make them go away nor work to the benefit of the employer.

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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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