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CASE
UPDATES
By: Martin J. Mayer
&
Mervin D. Feinstein
Family and Medical
Leave Act Violated Where Employer Uses Protected Absences In
Termination Decision
BACHELDER
v. AMERICA WEST AIRLINES, INC. 259 F.3d 1112 (2001)
Penny Bachelder worked for America West
for eleven years and was often absent from work for various health and
family-related reasons. In 1994, she took five weeks of medical leave
to recover from a broken toe, and in mid-1995 took maternity leave for
approximately three months. In addition to these extended absences,
Bachelder also called in sick several times in 1994 and 1995.
On January 14, 1996, one of America Wests
managers had "corrective action discussion" with Bachelder regarding
her attendance. The company was concerned about several occasions where
Bachelder had called in sick, and the 1994 and 1995 leaves per the Family
and Medical Leave Act (FMLA). Bachelder was advised to improve her attendance
and was required to attend meetings where her progress would be evaluated.
In February 1996, Bachelder was absent
from work again for a total of three weeks, during which time she submitted
two doctors notes indicating her diagnosis and stating when she could
return to work. In March 1996, Bachelders attendance was flawless, but
in early April she called in sick for one day to care for her ill baby.
Right after that, on April 9, Bachelder was fired. The termination letter
gave three reasons: (1) Bachelder had been absent from work 16 times
since being counseled about her attendance in mid January; (2) she had
failed adequately to carry out her responsibilities for administering
her departments Employee of the Month program; and (3) her personal
on time performance and the on time performance in the section of the
airport for which she was responsible were below par.
Bachelder filed an action alleging that
America West impermissibly considered her use of leave protected by
the FMLA in its decision to terminate her. America West maintained that
it had not relied on FMLA protected leave because none of her February
1996 absences were protected by the Act, and her 1994 and 1995 FMLA
leaves did not factor into its decision. America West argued that it
used the retroactive "rolling" year method --one of the four methods
permitted by the leave year regulation -- to calculate its employees eligibility
for FMLA leave, and Bachelder had exhausted her full annual allotment
of FMLA as of June 1996. Therefore, she was not entitled to such leave
until twelve months had elapsed from the commencement of her 1995 maternity
leave.
America Wests motion for summary judgment
was granted in part by the district court, having decided that none
of the 1996 absences were protected by the FMLA. Following a bench trial
the district court found that America West had not considered the 1994
and 1995 FMLA protected leaves in making the termination decision, and
entered judgement for America West.
The United States Court of Appeals, Ninth
Circuit, reversed and remanded, holding that Bachelders February 1996
absences were protected by the FMLA, and America West had used these
absences as a negative factor in its decision to fire her. The Court
noted that an employer is permitted to choose any one of the following
methods for determining the "12-month period" in which the 12 weeks
of leave entitlement occurs:
(1)The calendar year; (2) any fixed 12-month "leave year," such as a fiscal year, a year required by State law, or
a year starting on an employees "anniversary" date; (3) the 12-month
period measured forward from the date an employees first FMLA leave
begins; or, (4) a "rolling" 12-month period measured backward from the
date an employee uses any FMLA leave.
The Court pointed out that the FMLA created
two interrelated, substantive employee rights: first, the employee has
a right to use a certain amount of leave for protected reasons, and
second, the employee has a right to return to his or her job or an equivalent
job after using protected leave. The regulations also prohibit an employer
from using the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions; nor can
FMLA leave be counted under "no fault attendance policies. The established
understanding, at the time the FMLA was enacted, was that employer actions
that deter employees participation in protected activities constitutes
"interference" or "restraint" with the employees exercise of their rights.
Although the Court agreed with America
Wests contention that the FMLAs implementing regulations did not expressly
embody a requirement that employers inform their employees of their
chosen method for calculating leave eligibility, it opined the regulations
plainly contemplated that the employers selection of one of the four
calculation methods would be an open one, not a secret kept from the
employees. The regulations required covered employers who provide "any
written guidance to employees concerning employee benefits or leave
rights, such as in an employee handbook," to "incorporate information
on FMLA rights and responsibilities and the employers policies regarding
the FMLA" therein. Failure to do so results in having to use 'the option
that provides the most beneficial outcome for the employee."
How this affects your agency:
This case should act as a reminder to check internal policies
for consistency with personnel rules and
regulations of the employer (City, County, District, etc.) The policy
should encompass not only the provisions of the Federal Family and Medical
Leave Act (29 U.S.C. § 2612), but also the additional provisions found
in California Government Code § 12945, et seq., and the recently enacted
Labor Code § 233, which entitles an employee use of six months accrued
and available sick leave for the care of an ill child, spouse or parent.
*********
ADA Violated Where
Policy Restricts
Disabled Officers
To Undesirable Positions
CRIPE. et al. v. CITY OF SAN
JOSE 261 F. 3d 877
(2001)
Officers Cripe, Martin, OKeefe, Palmer,
Fearheiley, and Arvin suffered neck, back, and other injuries while
employed which prevented them from serving as beat patrol officers,
but were not so debilitating as to prevent them from performing all
police officer assignments. The City agreed with this assessment and
had assigned the officers to other positions, however the officers contended
that the City improperly limited the type of non-patrol assignments
that they were permitted to receive.
Under the current negotiated agreement
between the City and the police union, officers "not fit for regular
assignment" are assigned to a "Modified Duty Pool." Thirty modified
duty assignments are allocated among disabled officers on the basis
of seniority. All of the positions are non-patrol positions. The Modified
Duty Policy does not permit the City to make any individual assessment
as to whether an officer, with or without an accommodation, can perform
the essential functions of any job other than the contractually set-a-side
"modified duty" positions. Thus, no disabled officer is eligible for
any other job assignment within the Department.
Under the Officer Transfer Policy, officers
who are not serving in patrol positions are not eligible to bid for "specialized assignments." Because the six officers cannot perform patrol
duties, the transfer policy categorically precluded them from receiving
any of the positions they sought to obtain and prevented them from being
promoted to the position of Sergeant.
Actions were filed by the officers, and
the City argued that the policies that prevented them from competing
for specialized assignments are lawful as applied to them, because:
1) the officers do not qualify as "disabled" under the Act; 2) the officers
cannot perform the "essential functions" of the positions they seek;
3) it would impose an "undue hardship" on the City to require it to
accommodate the officers by waiving the disputed policies; and 4) the
modified duty assignment policy is a reasonable accommodation satisfying
the ADAs mandate.
The district court entered an order in
favor of the City, granting the Citys motion on the ground that the
officers were not "qualified individuals," because they could not perform
the essential function of "effect[ing] a forcible arrest, control[ling]
a combative or escaping individual and respond immediately to physical
threat or widespread emergency crisis." The district court agreed with
the City that the performance of these duties were an essential function
of all specialized assignments, even though specialized assignments
are not patrol officer positions.
The United States Court of Appeals, Ninth
Circuit, reversed and remanded, concluding that the district court erred
in granting summary judgment for the City.
The Court noted that the ADA explains
that, when determining whether a job requirement is an "essential function,"
"consideration shall be given to the employers judgment as to what functions
of a job are essential, and if an employer has prepared a written description
before advertising or interviewing applicants for the job, this description
shall be considered evidence of the essential functions of the job."
(42 USC. § 12111(8). However, the court stated, such evidence is not
conclusive.
The deposition of a sergeant in the Fraud
Unit, Donald Black, was cited by the officers. Sgt. Black testified
that being able to serve arrest warrants and make arrests was not, for
all practical purposes, part of being a fraud investigator. Sgt. Black
testified that officers with back problems that make them unfit for
street patrol "would make good background investigators, good internal
affairs investigators, land] good recruiters." Sgt. Black also testified
that for a period of twenty to twenty-five years, starting well before
the inception of the modified duty policy, disabled officers who were
not specifically placed on special status by the Department have been
performing the essential functions of investigative positions. Other
testimony from a former Chief of Police included the admission that
making forcible arrests was not an essential function of training officers
in the Bureau of Administration.
The Court found the Citys officer transfer
policies were "qualification standards" that "screen out . . . a class
of individuals with disabilities," and may not be applied to disabled
officers unless it is "shown to be job related and ... consistent with
business necessity." The Court noted that the ADA does not contemplate
that the disabled must be integrated only into workplaces in which the
work to be performed is unimportant -- it requires every type of employer
find ways to bring the disabled into its ranks, even when doing so imposes
some costs and burdens. When enacting the ADA, Congress concluded that
such is a small price to pay for the benefits of living in a society
in which the disabled may realize "equality of opportunity, full participation,
independent living, and economic self-sufficiency." The City of San
Joses police department must participate in this process, as long as
it can do so in a manner that will not compromise public safety.
How this affects your agency:
Review of "essential job elements", transfer policies, modified
duty assignment and how officers are selected for specialized assignments
must be reviewed on a regular basis to ensure compliance with legislative
directive as well as judicial application. This case points out that
an agency may not overlay essential job functions of an officer assigned
primarily to patrol to any and all assignments an officer may be called
upon to perform. Each assignment must be assessed on its own merits,
and all qualified employees must be given an opportunity to be considered
for a position, if otherwise qualified, as long as it does not compromise
public safety
*********
Not Searching For
Injured Man Who
Wanders Off
Does Not Violate
His Rights
ESTATE OF AMOS v. CITY OF PAGE,
ARIZONA et al. 257
F. 3d 1086 (2001)
Amos car crossed the center line of the
highway and collided nearly head-on with an oncoming vehicle. Both cars
were severely damaged, and the other driver had to be cut from her car.
When Page officers arrived they were informed by witnesses that, immediately
following the accident, Amos got out of his car and either walked, stumbled,
or jogged into the desert. Officers halted civilian search efforts,
instructing people who had stopped at the scene to leave the accident
site. Upon inspecting Amoss car, officers discovered blood inside, and
two officers began following a set of tracks leading into the desert
which evidenced a person running or jogging, stumbling and kneeling,
and going in circles. When the officers flashlights lost power they
cut short their search. A helicopter called to assist in the search
quickly abandoned its effort due to concerns over nearby power lines.
Police did not resume their search until
almost a month and a half later, when Amos father arrived in Page and
expressed concern about the whereabouts of his son. Both the police
and fathers private search were fruitless. Amoss remains were ultimately
discovered in a pile of rock debris at the bottom of a canyon by tourists
almost one year after the father filed his complaint.
The father filed an action in federal
court alleging a violation of Amoss substantive due process and equal
protection rights due to a deficient and ineffectual search operation,
and that the Citys inadequate police training evidenced a "deliberate
indifference" to the constitutional rights of Amos and caused him injury.
The district court dismissed the action for failure to state a claim
under federal court rules.
The United States Court of Appeals, Ninth
Circuit affirmed in part and reversed in part, and remanded.
Affirming the District Courts dismissal
of the "substantive due process" violation, the Court held that while
the police officers search may have been incompetent, lacking in scope
and duration, any danger that presented itself to Amos as a result of
the states action or inaction did not implicate due process.
The Court, however, reversed the District
Courts dismissal of the training issue, holding that the father sufficiently
alleged that the City maintained a policy that "amount[ed] to deliberate
indifference" and that the only question was whether the father sufficiently
alleged that the Citys conduct deprived Amos of his constitutional rights.
Regarding the allegation that the Citys
inadequate police training deprived Amos of his constitutional rights,
the Court stated that to prevail the father must sufficiently allege
that: (1) Amos was deprived of his constitutional rights by the City
acting under color of state law; (2) that the City has customs or policies
which amount to "deliberate indifference" to Amoss constitutional rights;
and (3) that these policies were the "moving force behind the constitutional
violations."
The Court pointed out that "[i]n this
circuit, a claim of municipal liability under section 1983 is sufficient
to withstand a motion to dismiss even if the claim is based on nothing
more than a bare allegation that the individual officers conduct conformed
to official policy, custom, or practice." Lee v. Co. of Los Angeles,
240 F3d 754 (9~ Cir.2001). However, "a public entity is not
liable for § 1983 damages under a policy that can cause constitutional
deprivations, when the fact finder concludes that an individual officer,
acting pursuant to the policy, inflicted no constitutional harm to the
plaintiff." City of Los Angeles v. Heller, 475 US. 796, 799 (1986).
How this affects your agency:
Officers must keep in mind that actual practice over a period
of time will constitute a custom and become viewed by the courts as
official policy. Reasonable actions based upon the situational facts
confronted should guide personnel on how to proceed. Here the agency
had a practice, based on their experience over time, which assumed drivers
involved in accidents were Native American and had fled to the Reservation
a few miles away and would call the next day to report their car stolen.
Training and policy must continually be evaluated to insure currency.
*********
Duty Of Reasonable
Care Exists For
Safety of Persons
Stopped For
Traffic Violations
LUGTU, et al. v. CALIFORNIA
HIGHWAY PATROL, et al. 26
Cal. 4th 703 (2001)
Cecelio Lugtu and other passengers in
a vehicle, was pulled over by CHP Officer Richard Hedgecock, into the
center median strip, for a traffic violation. A pickup truck ran into
the automobile from behind, while the car was stopped and injured all
the occupants. A personal injury action was filed against (1) the driver
of the pickup truck, (2) the driver of the automobile in which they
were riding, and (3) the California Highway Patrol and Officer Hedgecock,
who had directed their vehicle to stop in the center median, alleging
each had been negligent and bore some legal responsibility for the injuries.
Prior to trial the CHP and Officer Hedgecock
filed a motion for summary judgment, contending that the action against
them should be dismissed on the ground, among others, that Officer Hedgecock
owed no legal duty of care to plaintiffs. The trial court granted summary
judgment in favor of the CHP and Officer Hedgecock, based in part upon
its determination that Officer Hedgecock "had no duty to stop plaintiffs
on the right shoulder as a matter of law and there is no triable issue
of fact as to whether [the officer] acted with due care or whether his
conduct was a legal cause of plaintiffs injuries."
The Court of Appeal reversed, concluding
that Officer Hedgecock owed plaintiffs a legal duty of reasonable care
when he directed the driver of the automobile in which they were riding
to stop in a particular location, and that triable issues of material
fact existed as to whether the officer acted with reasonable care and
whether his alleged negligence was a legal cause of plaintiffs injuries.
The California Supreme Court affirmed
the Court of Appeal, holding that the governing precedents clearly establish
that a law enforcement officer, in directing a traffic violator to stop
in a particular location, has a legal duty to use reasonable care for
the safety of the persons in the stopped vehicle and to exercise his
or her authority in a manner that does not expose such persons to an
unreasonable risk of harm. The Supreme Court stated that the summary
judgment in favor of the CHP and Officer Hedgecock could not be upheld
on the theory that Officer Hedgecock owed no duty of care to plaintiffs.
The Supreme Court stated that a jury
properly could find from the evidence presented that Officer Hedgecock
was not negligent in directing the automobile to stop in the center
median under the circumstances. However, it agreed with the Court of
Appeal that, in view of the conflicting declarations and the provisions
of the CHP Officer Safety Manual submitted by the plaintiffs in opposition
to the summary judgment motion, the issue whether Officer Hedgecock
was or was not negligent could not properly be resolved by a court as
a matter of law and presented a triable issue of fact for the jurys
determination.
How this affects your agency: While this case appears to create an high standard for law enforcement
personnel in not just traffic enforcement but also traffic stops of
every nature, it serves to remind law enforcement that in routine matters
personnel must always keep in mind that their authority to stop and
detain also carries with it the responsibility for the safety of those
stopped. Here the Supreme Court is also reminding the trial courts that
they do not have unfettered discretion to make decisions as a "matter
of law" thereby usurping the ability of a jury to decide conflicting
issues. Departments should review their stop and detain policies to
ensure proper guidance is contained therein.
*********
DMV Error Did Not
Negate Impound And Vehicle Inventory Search
PEOPLE v. ASHBURN 90
Cal.App. 4th 1282 (2001)
Redding Officers Fredrick and Moore stopped
Ashburn for speeding and an expired registration. Before pulling Ashburn
over the officers were advised by the police dispatcher that the vehicles
registration was "non-op and had been expired for eight months. Ashburn
told the officers that the registration was current, the car had been
registered the day before. Because the vehicle was being driven on a
public roadway while it was on non-operational status, the officers
decided to impound the car. During the inventory search of the car officers
found more than 10 grams of methamphetamine, 5 to 10 grams of marijuana,
a glass pipe, a cutting agent used as an additive for the sale of methamphetamine,
2 pagers, a hypodermic syringe, and various empty Ziploc baggies.
The computer information provided the
officers turned out to be incorrect. Ashburn had registered the car
the day before being pulled over. Ashburn moved to suppress the evidence
and the court denied the motion because it found that the "error" in
the computerized information was caused by the DMV, not law enforcement.
The California Court of Appeal, Third
Appellate District, affirmed holding that the officers acted reasonably
by relying on the DMV record. The Court noted that Ashburn was required
to carry his validated registration card in his car while operating
it and could have avoided the problem entirely by presenting a validated
registration card to the officers.
The Court also concluded that a reasonably
short time period between the event giving rise to the requirement for
updating a computer record and an arrest did not require the suppression
of evidence obtained in a search based on a "stale" record. Updated
data, the Court observed, must be entered into a computer by people,
checked by people and then downloaded into the main computer database
by people.
How this affects your agency:
While officers will be considered to be acting objectively
reasonable where there is a relatively short time period involved, as
in this case, agencies may want to consider discussing with prosecutors
where the line may be drawn by the courts. A print out attached to arrest
and impound reports, containing the information relied upon, is essential
to support the officers good faith actions.
*********
[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.
Caseupdt.000.Vol5#1
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