CASE UPDATES

By: Martin J. Mayer
&
Mervin D. Feinstein

For Workers' Compensation Purpose Police Officer Not On Special Mission While Commuting To Testify In Court

CITY OF SAN DIEGO v. WCAB (Stephen E. Molnar), 89 Cal.App. 4th 1385 (2001)

San Diego Police Officer Stephen E. Molnar was required by subpoena to testify on a matter arising out of his duty as an officer on a day he was not scheduled to report for duty. He was injured in a traffic accident while driving his personal car from home to the courthouse. Molnar submitted a claim for workers' compensation benefits which the City denied on the ground that the "going and coming" rule applied, precluding recovery for his injuries. The workers' compensation judge rejected the City's argument and awarded Molnar benefits, based on a finding that he was on a special mission during his commute to the courthouse and thus was acting in the course and scope of his employment at the time of his injury.

The City sought reconsideration of the matter by the WCAB, which affirmed the award of benefits. The California Court of Appeal, Fourth Appellate District annulled the order of the WCAB, holding that commuting to the courthouse was not a special mission but within the purview of the going and coming exception.

The Court noted that the special mission exception applies Awhen the employee is requested to perform an unusual service or a usual service at an odd hour[.] [T]he trip becomes Aspecial@ because the bother and effort of the trip itself is an important part of what the employee is being compensated for." To support the existence of a special mission the underlying activity must be (1) special, that is, extraordinary in relation to the employee's routine duties, (2) within the scope of the employee's employment, and (3) undertaken at the request or invitation of the employer. Here the Court agreed with the City that Molnar could not establish the first prong of a special mission because testifying in court was part of his routine duties as a traffic officer.

The Court also concluded, based on the record, that it was an integral part of a San Diego patrol officer's duties to testify, if subpoenaed to do so, in a proceeding arising out of his or her patrol work, and that such an officer testifies at such proceedings an average of twice a month. Testimony established that it was not unusual for officers to be called to testify on days when they were not scheduled to report for duty, and that the police department had various policies applicable to officers who testified on off-duty days. One such policy, the Court noted, included a provision of the Memorandum of Understanding between the San Diego POA and the City, where Molnar received overtime compensation for testifying on an off-duty day.

/ How does this impact your agency?

A significant issue was that the officer was operating his private vehicle when the injury occurred and not a "take home vehicle." Departments should review their policy regarding "take home vehicle" with their legal advisor. It has been held that a take home vehicle is for the benefit of the employer not the employee, Howell v. Co. of San Bernardino, 149 Cal.App.3d 200 (1983), and the off-duty operation of such vehicle may create, not only exposure to workers' compensation claims, but also civil liability.

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Insults, Name-Calling, And Vulgarities Constitutes Sexual Harassment When Directed At Effeminate Male

SANCHEZ v. AZTECA RESTAURANT ENT. INC., 2001 WL 792488 (9th Cir.Wash.)

Throughout Antonio Sanchez's employment tenure he was subjected to a relentless campaign of insults, name-calling, and vulgarities by male co-workers and a supervisor, who repeatedly referred to him, in Spanish and English, as "she" and "her." Male co-workers mocked Sanchez for walking and carrying his servicing tray "like a woman," and taunted him in Spanish and English as, among other things, a "faggot" and a "fucking female whore." This conduct violated company policy which expressly prohibited sexual harassment and retaliation. The policy required employees to bring complaints regarding such conduct directly to the attention of the corporate office.

Although Sanchez attended Azteca's sexual harassment training and was familiar with the company's anti-harassment policy and reporting procedures, he never complained to the corporate EEO officer or the area manager. Sanchez did, however, complain to the general manager of the South-center restaurant and to an assistant manager. Sanchez also reported and described the specifics of the harassment to Azteca's human resources director.

A couple of months after Sanchez met with the human resources director he became involved in a heated argument with an assistant manager and walked off the job. Sanchez was fired for leaving work in the middle of his shift. Sanchez filed a charge of discrimination with the EEOC and initiated a lawsuit. Following a bench trial, the district court entered judgment in favor of Azteca on all claims, concluding that Sanchez had not been subjected to a hostile environment and that there had been no retaliation because Sanchez had not engaged in any protected activity.

The United States Court of Appeals, Ninth Circuit agreed with Sanchez that the behavior of his co-workers and supervisor violated Title VII and Washington's Law Against Discrimination, and that Azteca failed to take adequate steps to remedy the harassment. The Circuit Court reversed the district court, with respect to the hostile work environment claim, and affirmed with respect to the retaliation claim.

The Court stated that in order for Sanchez to prevail on his hostile environment claim he was required to establish a "pattern of ongoing and persistent harassment severe enough to alter the conditions of employment." To satisfy this requirement Sanchez needed to prove that his workplace was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive and one that the victim in fact did perceive to be so." (Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).

The court pointed out that to determine if an environment was sufficiently hostile or abusive to violate Title VII, it had to look at "all the circumstances," including the "frequency of the discriminatory conduct, its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Harris v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993). The required level of severity or seriousness "varies inversely with the pervasiveness or frequency of the conduct." "[S]imple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." (Faragher, 524 U.S. at 788).

The Ninth Circuit, after having reviewed the record, held that a reasonable man would have found the sustained campaign of taunts, directed at Sanchez and designed to humiliate and anger him, sufficiently severe and pervasive to alter the terms and conditions of his employment. The Court also noted that sexual harassment was actionable under Title VII to the extent it occurs "because of" the plaintiff's sex. (Oncal v. Sundowner Offshore Svs. Inc., 523 U.S. 75 (1998).

The Court concluded by pointing out that "once an employer knows or should know of [coworker] harassment, a remedial obligation kicks in." Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.1995). An employer is liable for the hostile work environment created by a coworker unless "the employer ... take[s] adequate remedial measures in order to avoid liability." Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1482 (9th Cir.1997). Here, the company made no effort to investigate Sanchez's complaint; it did not discuss the allegations with the perpetrators; it did not demand that the unwelcome conduct cease; and it did not threaten more serious discipline in the event the harassment continued. The record established that Azteca failed to remedy the harassment and discipline those responsible for it, therefore, Azteca is liable for the hostile environment created by its supervisor and employees.

/ How does this impact your agency?

This case is a reminder that an act of omission by a supervisor will be imputed to the employer. There is, in fact, an obligation to investigate complaints of this nature and to take action that is affirmatively designed to stop such conduct. It is not enough to just have a policy, to provide and conduct ongoing training or to receive an employee's complaint, if the agency is not going to take remedial action that sends a strong message of disapproval.

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Removing Vehicles From Property Without Making Factual Determinations Violates 14th Amendment

ZIMMERMAN v. CITY OF OAKLAND, et al., 255 F.3d 734 (2001)

Zimmerman owned property in Oakland that was zoned for light industrial use. A reconditioned transit bus was stored on the property for the use of the Jim Hines Foundation, a nonprofit organization whose office was also located on the property. Sgt White and other Oakland police officers entered the property on March 27 to search for derelict vehicles and tagged several, including the bus. Oakland P.D. then mailed the Zimmermans a notice stating that the City considered the vehicles public nuisances and would seize them in ten days.

As provided for in the notice, Mr. Zimmerman requested a pre-seizure hearing which was scheduled at the Zimmerman property April 23. On that date, Sgt. White arrived and announced that he would be the hearing officer. Zimmerman argued that instead of conducting a hearing, Sgt. White began a warrantless search of the property and summarily directed that several vehicles, including the bus, be towed and scrapped.

Zimmerman sued in federal court under 42 U.S.C. 1983. The District Court granted the City's motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The United States Court of Appeals, Ninth Circuit, reversed and remanded for further proceedings, holding that Zimmerman's complaint that Defendants violated their Fourteenth Amendment due process rights, stated a claim under section 1983.

The Court, looking to the United States Supreme Court's holding in Zinermon v. Burch, 494 U.S. 113 (1990), noted that the deprivation took place at a "specific, predictable point in the process" B when Sgt. White came out to the Zimmermans' property and conducted the hearing. Second, it was not "absurd" to suggest that Oakland should hold a hearing to determine whether Zimmerman should be deprived of his property, noting that the Oakland ordinance under which Sgt. White acted prescribes precisely such a hearing. Third, that Sgt. White was delegated the power and authority to effect the very deprivation complained of, and had the concomitant duty to initiate the procedural safeguards set up under the Oakland ordinance to guard against the unlawful deprivation.

The Court concluded that Zimmerman had no legitimate expectation of privacy in the area where the bus was stored, and found no Fourth Amendment violation. The Court pointed out that when a police officer enters a commercial area, in the same manner as any member of the public, and examines the area in the same way as might be expected of any other person, the officer has not conducted a "search" within the meaning of the Fourth Amendment. .

/ How this affects your agency:

Vehicle abatement should be a very methodical process, with each employee involved following the statutory scheme set forth in the appropriate ordinance. Liability can be avoided only when property owners are afforded all rights and protections prior to removal of any property. Where doubt exists as to what action can be taken, as well as when it is to be taken, personnel should consult legal counsel.

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Arrest Warrant Will Not Immunize Officers Who Search A Third-Party Home On Anonymous Tip

WATTS and PRYOR v. CO. OF SACRAMENTO 2001 WL 792537 (9th Cir.Cal.)

Sacramento's Crime Alert Center received an anonymous tip that Chris Burgess, a wanted murder suspect, was seen standing in front of a residence. Burgess was named in an arrest warrant on charges of murder and assault. The warrant gave a known address in San Jose, California. The tipster claimed that Burgess was living at the address he was standing in front of with his girlfriend and two small children.

Sgt. Munn received a computer dispatch requesting that he investigate the tip and which informed Munn that: (1) Burgess was a black male, 6'1" and 200 pounds; (2) there was a warrant for Burgess's arrest on a murder charge; and (3) Burgess was possibly located at a certain address with his girlfriend and two children. Sgt. Munn assembled a team of five officers and briefed them on the information. Dep. Morace knocked on the residence door with his gun drawn, and Christopher Pryor answered. Dep. Morace observed that Pryor generally fit Burgess's description and inquired whether his name was Chris. Pryor responded affirmatively, which prompted Dep. Morace to instruct Pryor to back away from the door, put his hands up and get down on his knees. Prior was in his boxer shorts.

After handcuffing Pryor, Dep. Morace seated him in a chair in the kitchen while Deputies Timberlake and Black performed a protective sweep of the house. Dep. Timberlake found Binti Watts, he had her awaken her two children and escorted her and the children to the bedroom, where they were held under guard. Sgt. Munn then obtained Pryor=s identification, had Timberlake run a check on it and discovered that it was valid. At some point, the officers also observed that Pryor's scantily clad body did not bear the identifying tattoos that Crime Alert indicated Burgess had. After about thirty to forty-five minutes, the officers released Pryor, explained the mistake to him and left the house.

Watts and Pryor brought an action under 42 U.S.C. 1983 for the unlawful entry of their home and wrongful arrest and detention. The district court granted defendants summary adjudication of the Fourth Amendment unlawful entry and detention claims and dismissed state tort claims for false arrest and imprisonment. The United States Court of Appeals, Ninth Circuit reversed and remanded.

The Ninth Circuit noted that the anonymous tipster was never identified, and there was no evidence that the sheriff's department made any effort to check directories and verify that the address given by the tipster, but not listed in the arrest warrant, was in any way connected with Burgess. The Court stated that the mere fact that Pryor answered the door of his girlfriends home in his boxer shorts did not establish a reasonable belief that he lived there. The Court also held that the deputies imprisoned Watts by taking her into a bedroom and detaining her there. Concluding that because the deputies had unlawfully entered the home, and unlawfully arrested Pryor, safety concerns did not immunize their interference with the liberty of Watts and her false imprisonment claim should not have been dismissed.

/ How this affects your agency:

This case points out the hazard of acting on an anonymous tip, even with an arrest warrant, without doing some preliminary investigation to gather as much information as is reasonably available prior to invading a third party's residence. Fourth Amendment issues can be most complicated especially where a residence, not readily identified with the suspect, is involved. Officers are urged to make use of on call legal advisors, i.e., Deputy District Attorney in criminal matters.

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Anonymous Tip Must Exhibit Sufficient AIndicia of Reliability@ to Establish Reasonable Suspicion

U.S. v. MORALES and RUELAS, 252 F.3d 1070 (2001)

The Mineral County, Montana Sheriff's Department received an "Attempt to Locate" (ATL) issued by law enforcement in Spokane, Washington. The ATL informed officers that the Spokane police department had received a tip that a 1989 Ford Taurus, with Washington license plate number 772 JJY was transporting a pound of methamphetamine from Spokane to Missoula, Montana. The ATL stated that two male Hispanics were in the car, but did not include information about the tipster=s identity or reliability, or information about the basis of the tipster's knowledge. The tipster did not provide information about the Taurus's route, but the Mineral County deputies took up posts along I-90, the most probable route from Spokane to Missoula.

Deputy Toth spotted a white Ford Taurus traveling east through Mineral County and could tell that there were two occupants, but was unable to tell whether the occupants were "Hispanic." The license place was not Washington 772 JJY, as the tipster suggested, but Washington 885 KFW. When Deputy Toth ran a plate check he learned that 885 KFW was a replacement number for 772 JJY, and based on this information concluded that he was following the car identified by the tipster.

The car traveled approximately 32 miles without violating any traffic laws or behaving in a suspicious manner. Deputy Toth and Sgt. Johnson, who had constant contact throughout, agreed that the ATL alone was not enough to stop the car, and they explored various avenues to develop probable cause for a traffic stop. Relying on the advice received from a Montana Highway Patrol sergeant that tinted windows, which the Taurus had, were illegal in Montana they decided to stop the vehicle. (This advice was conceded to be bad in as much as tinted windows were only illegal on vehicles that had to be registered in Montana.)

The vehicle was stopped and driver, Ruelas, along with passenger, Morales, were detained until a narcotics detection canine could be brought to the scene. Warrant checks on Ruelas and Morales came back negative. Ruelas and Morales were handcuffed and placed in the back of one of the patrol cars after Deputy Toth surreptitiously placed a tape recorder in the patrol car to record any conversation between the two. The canine alerted to the presence of narcotics in the trunk and the passenger door. The officers impounded the car and released Ruelas and Morales in the nearby town. The following day a warrant to search the car was obtained and one-half pound of methamphetamine was located. The officers then located Ruelas and Morales and took them into custody on warrants.

Charged with possession of methamphetamine with intent to distribute, Ruelas and Morales filed a joint motion to suppress the drugs, with Ruelas filing to suppress the tape recording of the conversation in the police car. After a hearing the district court ordered the suppression of all evidence seized after the initial stop, concluding that the initial stop of the Taurus was unconstitutional because: (1) the officers' good faith, but mistaken, belief that tinted windows were illegal in Montana did not justify the stop under the Fourth Amendment; and (2) the tip alone did not support a reasonable suspicion that criminal activity was afoot. Both the drugs and tape recording were suppressed.

The United States Court of Appeals, Ninth Circuit, affirmed the district court's order granting the defendants' motion to suppress, holding that the tip did not exhibit sufficient "indicia of reliability" to establish reasonable suspicion.

The Court pointed out that under Terry v. Ohio, 392 U.S. 1, 30 (1968), law enforcement officers must have at least a reasonable suspicion of criminal activity before stopping a suspect. The Court also noted that an alleged traffic violation is a pretext for the stop was irrelevant, so long as the objective circumstances justify the stop, U.S. v. Wallace, 213 F.3d 1216 (9th Cir.2000).

The Court also noted that what the Supreme Court teaches in Illinois v. Gates, 462 U.S. 213 (1983); Alabama v. White, 496 U.S. 325 (1990; and Florida v. J. L., 529 U.S. 266 (2000), is that in order for an anonymous tip to serve as the basis for reasonable suspicion: (1) the tip must include a "range of details;" (2) the tip cannot simply describe easily observed facts and conditions, but must predict the suspect's future movements; and (3) the future movements must be corroborated by independent police observation.

The Court pointed out that this tip was more reliable than the tip in J. L., but not as detailed as the tip in White, and that the police missed their opportunity to confirm that the defendants were going to Missoula by not following it and thereby did not sufficiently corroborate the destination. Because the officers did not have reasonable suspicion to believe that the defendants were engaged in criminal activity, their stop of the Taurus was unconstitutional.

/ How this affects your agency:

Field personnel, at every level, must be continually updated regarding Fourth Amendment applications to every day fact situations. Where other law enforcement agencies, state or federal, issue "confidential source" information, agencies must confirm the reliability of the data and/or establish independent corroboration prior to stopping an individual and taking action.

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[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

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. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

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