CASE UPDATES

Sexual Harassment Defenses Outlined By U.S. Supreme Court Do Not Apply In Action Under FEHA

DEPARTMENT OF HEALTH SERVICES v. SUPERIOR COURT OF SACRAMENTO COUNTY (2001) 94 Cal. App. 4th 14

Theresa McGinnis worked at DHS under the supervision of Cary Hall. According to McGinnis's complaint, Hall sexually harassed her over an extended period of time beginning in mid-1995, with inappropriate comments and physical touching. McGinnis confided in a coworker, but did not report Hall's behavior to management until November 1997. When McGinnis brought the matter to the attention of Hall's second-line supervisor, the supervisor reported the allegations to the DHS, Office of Civil Rights. That office investigated the matter and concluded Hall had violated the DHS policy. Disciplinary action was commenced and Hall ultimately retired.

McGinnis filed a complaint against Hall and DHS that alleged causes of action for sexual harassment and sex discrimination. DHS moved for summary judgment, arguing in part that the Burlington/Faragher defense applied, pointing out that (1) no adverse action had been taken against McGinnis, (2) it had developed a comprehensive policy and program to prevent and combat sexual harassment, and (3) McGinnis had not availed herself of those measures in a timely manner. The trial court denied DHS's motion.

The California Court of Appeal, Third Appellate District (Sacramento) held that California's Fair Employment and Housing Act was distinguishable from Title VII in several critical respects, and concluded that the Burlington/Faragher defense was inapplicable to state claims.

The Appellate Court noted that Sexual Harassment was not expressly mentioned in Title VII, however the EEOC Guidelines and federal case law recognized sexual harassment as a type of sex discrimination and as a violation of Title VII. The Court pointed out that unlike Title VII, FEHA explicitly mentions harassment as an unlawful employment practice, prohibiting an employer from harassing an employee because of sex, and that the statue expressly states that "harassment because of sex" includes sexual harassment (GC § 12940, subd. (j)(4)(C)).

The Court also noted that while Title VII does not explicitly address the question of employer liability for supervisor harassment, FEHA does, pointing out that harassment by a non-supervisory coworker is unlawful only if the employer knew, or should have known, of the harassment and failed to correct it. No such limitation exists for harassment by a supervisor or agent. Harassment by a supervisor is unlawful regardless of whether the employer knows or should have known and fails to intervene. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415).

The Appellate Court pointed out that the California Supreme Court recently made a similar observation in Carrisales v. Department of Corrections (1999) 21 Cal.4^th 1132, 1136-1137, holding that section 12940 "makes the employer strictly liable for harassment by an agent or supervisor, but liable for harassment by others only if the employer fails to take immediate and appropriate action when reasonably made aware of the conduct." Therefore, the court concluded, in as much as jurisprudence relating to employer liability for harassment by a supervisor under FEHA has developed differently from that under Title VII, permitting the Burlington/Faragher defense to be applied to FEHA cases would undermine the clear language of section 12940, subdivision (j)(1) and legislative intent.

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Transfer And Pay Downgrade Is Subject For Administrative Appeal Not Arbitration

LOS ANGELES POLICE PROTECTIVE LEAGUE v. CITY OF LOS ANGELES, et al. (2001) 94 Cal. App. 4th 77

Robert Smith, a Sergeant and 25 year veteran of the Los Angeles Police Department was transferred from the West Los Angles Station to the Wilshire Station and assigned to less demanding duties than he had before. The change resulted in a downgrade of his pay classification from Sergeant II to Sergeant I. The reason for transfer was pending allegations of misconduct involving an officer-involved shooting incident.

Sgt. Smith initiated a grievance, alleging that such a downgrade is only permitted in circumstances that do not apply in his case. He stated that he was not grieving the transfer, only the salary downgrade. His allegation was that the Police Department had not complied with the Department Manual which conditions a pay reduction upon a showing that he was unable to satisfactorily perform his duties. Sgt. Smith also alleged that the pay downgrade amounted to discipline without a due process hearing.

The Police Protective League filed a petition to compel arbitration, alleging that the MOU contained a grievance procedure applicable to all grievances and that the Los Angeles Administrative Code requires binding arbitration for any unresolved grievance. The Department responded by denying the allegations of the petition and asserting that the subject matter of the grievance was not arbitrable.

The trial court denied the petition to compel arbitration finding that the MOU controlled the situation. The MOU states : "The Chief of Police has the authority to transfer and assign members of the Department. Such transfers and assignments are not grievable and are not arbitrable regardless of the reason for the transfer or assignment."

The California Court of Appeal, Second Appellate District, affirmed the order of the trial court, concluding that Sgt. Smith's only opportunity for review was by administrative appeal rather than arbitration because the case involved a transfer and assignment.

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Permitting Peace Officers To BringDefamation Suits Against Complainants Is
Unconstitutional

WALKER v. KIOUSIS (2001) 93 Cal. App. 4th 1432

California Highway Patrol Officers Donovan Walker and Philip Husband arrested Bill Kiousis for suspected drunk driving. Kiousis pled guilty to a "wet reckless." After pleading guilty, Kiousis filed a citizen complaint against Walker alleging that during his arrest Walker had used profanity in speaking to him, threatened him with physical violence, and had threatened him with three days in jail if he did not take a blood test.

The CHP concluded there was no merit to Kiousis's allegations, based largely on a tape recording which Walker had made of the traffic stop and arrest.

Walker then sued Kiousis pursuant to Civil Code section 47.5, which allows a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false complaint, about the officer, with the officer's employing agency. Walker's complaint asserted claims for libel and intentional and negligent infliction of emotional distress. Kiousis moved to strike the complaint pursuant to Code of Civil Procedure 425.16, also known as the "SLAPP" statute, arguing that section 47.5 was unconstitutional because it selectively targets speech critical of police officers and therefore is an impermissible content-based regulation. The court granted the motion to strike on the ground that Walker had failed to show he sustained any actual damage from Kiousis's complaint.

The California Court of Appeal, Fourth Appellate District concluded that Civil Code section 47.5 impermissibly regulates speech based on the content of the speech and therefore violates the constitutional right of free speech. The Appellate Court noted that a federal district court in California held that section 47.5 was unconstitutional on its face as violative of the First and Fourteenth Amendments.

The court concluded that "[b]y treating citizen complaints against police officers differently from complaints against all other government officers section 47.5 makes an impermissible content-based discrimination against a type of speech." Gritchen v. Collier, 73 F.Supp.2d 1148, 1153. The United States Court of Appeals for the Ninth Circuit later reversed the decision in Gritchen, holding that the police officer, Collier, was not acting under color of state law in threatening to sue the complaining citizen for defamation pursuant to section 47.5. Therefore, there was no federal jurisdiction. The court did not reach the question whether section 47.5 was constitutional (Gritchen v. Collier 254 F.3d 807, 814 (9^th Cir.2001).

After the district court decision in Gritchen, but before the Ninth Circuit decision, another federal district court in California similarly held section 47.5 to be unconstitutional as a content-based restriction on speech in violation of the First Amendment (Haddad v. Wall, 107 F.Supp.2d 1230, 1238-1239). The same court, the following day, issued a decision holding section 47.5's criminal counterpart, Penal Code section 148.6, unconstitutional under the same analysis. (Hamilton v. City of San Bernardino, 107 F.Supp.2d 1239, 1248 (C.D.Cal.2000).

The Court concluded that there are other means to deter false accusations of misconduct rather than allowing an action for defamation. As the courts in Gritchen and Haddad pointed out, a law enforcement agency could require citizen complaints to be made under oath so that false complaints would be punishable as perjury. The state might also do as most other states do and simply decline to provide an absolute privilege for statements made during a misconduct investigation regardless of who makes them or about whom they are made. Then false statements by officers, or in support of them, would be subject to the same potential liability as false statements about them.

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UNITED STATES v. KNIGHTS (2001) 122 S. Ct. 587

A California court's order, sentencing Knights to probation for a drug offense, included the condition that Knights submit to search at anytime, with or without a search or arrest warrant or reasonable cause, by any probation or law enforcement officer. Subsequently, a sheriff's detective, with reasonable suspicion, searched Knights's apartment. Based in part on items recovered, a federal grand jury indicted Knights for conspiracy to commit arson, for possession of an unregistered destructive device, and for being a felon in possession of ammunition. In granting Knights's motion to suppress, the District Court held that, although the detective had "reasonable suspicion" to believe that Knights was involved with incendiary materials, the search was for "investigatory" rather than "probationary" purposes. The Ninth Circuit affirmed.

The United States Supreme Court, in a unanimous decision, reversed, holding that a warrantless search, supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment. The United States Supreme Court found nothing in Knights's probation condition which limited searches to those with a "probationary" purpose. The Court rejected Knights's argument that a warrantless search of a probationer satisfied the Fourth Amendment only if it satisfies a "special needs" search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions. Further, the Supreme Court found no need to decide whether Knights's acceptance of the search condition constituted consent to a complete waiver of his Fourth Amendment rights because the search here was reasonable under the Court's general Fourth Amendment "totality of the circumstances" approach.

The Court pointed out that the Fourth Amendment's touchstone is reasonableness, and a search's reasonableness is determined by evaluating, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed to promote legitimate governmental interests.

"Knights's status as a probationer, subject to a search condition, informs both sides of that balance. The sentencing judge reasonably concluded that the search condition would further the two primary goals of probation - rehabilitation and protecting society from future criminal violations. Knights was unambiguously informed of the search condition. Thus, Knights's reasonable expectation of privacy was significantly diminished."

"In assessing the governmental interest, it must be remembered that the very assumption of probation is that the probationer is more likely than others to violate the law. The State's interest in apprehending criminal law violators, thereby protecting potential victims, may justifiably focus on probationers in a way that it does not on the ordinary citizen. On balance, no more than reasonable suspicion was required to search this probationer's house. The degree of individualized suspicion required is a determination that a sufficiently high probability of criminal conduct makes the intrusion on the individual's privacy interest reasonable."

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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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