CASE UPDATES

EMPLOYMENT

Resignation Based on Religious Belief Does Not Equate To Constructive Discharge

LAWSON v. WASHINGTON STATE PATROL, et al. 2002 DJDAR 7791, 296 F.3d 799

Gregory Lawson was hired by the Washington State Patrol and his basic training commenced at their Academy on July 13, 1998. Lawson was issued a manual which stated, in part, "[a]ll cadets will assemble for flag formations [twice daily] unless otherwise assigned." The manual stated that if a cadet deviated from the rules he would be subject to discipline up to and including termination. For the first two days at the Academy, Lawson, fully participated in flag formation and performed the required hand salutes. Lawson also read a copy of the Trooper's Oath that was to be taken upon successful completion of his Academy training. Lawson had twice previously applied for this position and had completed a written personal history and background questionnaire in which he certified as true his affirmative answer to the question, "Are you willing to take an oath to support the Constitution of the United States and the Constitution of the State of Washington?"

The evening of his second day of training Lawson sought out one of his counselors and informed his counselor that he was a Jehovah's Witness and could not salute the flag or take an oath of allegiance to a government because of his religious beliefs. Lawson then asked if there was something he could do besides salute the flag, suggesting the possible accommodation of standing respectfully during formation or performing cleaning duties elsewhere. The counselor replied that he did not know of anything that could be done and Lawson expressed his decision to resign.

The next day Lawson met with Lt.. Irwin, Acting Commander of the Academy, and informed him that his religious beliefs prevented him from saluting the flag and taking the Oath. Lt.. Irwin did not discuss possible accommodations, instead, he presented Lawson with a resignation letter, already prepared by the Academy, stating that he was resigning for personal reasons.

After Lawson's resignation was accepted, he contacted Capt. Porter, Commander of the Human Resources Division, explained his reasons for resigning and requested information regarding the official policy on religious accommodations. Capt. Porter told Lawson he would not be offered any accommodation and that if he wished to be a State Trooper he would have to salute the flag and swear his allegiance by taking the Oath.

Lawson filed a complaint alleging federal and state claims. The district court granted Washington's motion for summary judgment on all claims. The United States Court of Appeals Ninth Circuit affirmed. The court stated that Title VII makes it unlawful for an employer to discharge an employee because of the employee's religion and noted that, under Trans World Airlines v. Hardison, 432 U.S. 63, 74 (1977), it was an "unlawful employment practice...for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices, of his employees... ."

The Ninth Circuit pointed out that Title VII religious accommodations claims are analyzed under a two part framework. Lawson had to establish a prima facie case by showing that: (1) he had a bona fide religious belief, the practice of which conflicted with his employment duties as a State trooper cadet; (2) that he informed the State Patrol of his beliefs and the conflict; and (3) the State "threatened him with, or subjected him to, discriminatory treatment, including discharge, because of his inability to fulfill the job requirements."

It was undisputed in this case that as a Jehovah's Witness, Lawson's bona fide religious beliefs conflicted with the State's requirements that he salute the flag and swear to his allegiance to the United States and the State of Washington. It was also undisputed that Lawson informed his employer of the conflicts between his religious beliefs and his employment duties.

As to the third prong of the test, the court pointed out that Lawson did not present any facts that created an issue of constructive discharge, and the evidence showed that Lawson informed his counselor during the first meeting of his decision to voluntarily resign. The mere fact that the manual declared that rule violations may result in discipline or termination was not enough.

How this affects your agency: With the amendment to Government Code §12940, our legislature has declared it to be an unfair labor practice in this state to not reasonably accommodate the religious beliefs and observances o fan applicant or employee. It is therefore incumbent on departments to actively develop a policy and procedure to not only include the legislative accommodations placed in §12940, but also other reasonable accommodations.

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CIVIL RIGHTS

No Putative Damages For Private Actions Brought Under ADA

BARNES, et al. v. GORMAN 2002 DJDAR 6713, 122 S. Ct. 2097; 153 L. Ed. 2d 230

Jeffrey Gorman, a paraplegic, suffered serious injuries that left him unable to work full time when, after arrest, he was transported to a Kansas City police station in a van that was not equipped to accommodate the disabled. He sued police officials and officers for discriminating against him on the basis of his disability, in violation of §202 of the ADA and §504 of the Rehabilitation Act, by failing to maintain appropriate policies for the arrest and transportation of persons with spinal cord injuries. A jury awarded him compensatory and punitive damages. The District Court vacated as to the punitive damages, holding that they are unavailable in private suits brought under these sections.

In reversing the District Court, the Eighth Circuit found punitive damages available under the "general rule" of Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 70-71, which held that, "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief" for violation of a federal right.

The United States Supreme Court reversed the Eight Circuit, holding that punitive damages may not be awarded in private suits brought under §202 of the ADA and §504 of the Rehabilitation Act. The Supreme Court states that these sections are enforceable through private causes of action, whose remedies were coextensive with those available in a private action under Title VI of the Civil Rights Act of 1964, drawing attention to §203 of the ADA and §505(a)(2) of the Rehabilitation Act.

How this affects your agency: This case points out the need for departments to develop a comprehensive policy for the transportation and care of disabled individuals taken into custody.

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Declaratory Relief Cannot Be Sought By City Regarding Obligation To Disclose Documents

FILARSKY v. SUPERIOR COURT OF LOS ANGELES COUNTY (City of Manhattan Beach) 2002 DJDAR 7823, 28 Cal. 4th 419; 49 P.3d 194; 121 Cal. Rptr. 2d 844

Steve Filarsky requested the City of Manhattan Beach disclose certain documents pursuant to the California Public Records Act (CPRA). The city refused to disclose the requested documents and Filarsky stated his intent to file a judicial proceeding under Government Code §6258, to compel disclosure. Before Filarsky initiated any proceedings, the city filed its own declatory relief action pursuant to Code of Civil Procedure §1060, seeking a declaration that the city was not required to disclose the records sought by Filarsky.

The city prevailed in that action and the Court of Appeal denied Filarsky's request for a writ of mandate to overturn the trial court's order declaring that the city was not required to disclose the documents. The Court of Appeal also held that the city properly could initiate a declatory relief action pursuant to Code of Civil Procedure §1060 to ascertain its obligation to disclose documents requested pursuant to the Public Records Act, even though Filarsky had not commenced any litigation regarding his request for disclosure.

The California Supreme Court unanimously reversed holding that permitting a public agency to circumvent the established special statutory procedure of the CPRA, by filing an ordinary declatory relief action against a person who has not yet initiated litigation, would eliminate statutory protections and incentives for members of the public in seeking disclosure of public records. The Supreme Court also noted that such action would require members of the public to defend civil actions they otherwise might not have commenced, and discourage them from requesting records pursuant to the Act, thus frustrating the Legislature's purpose of furthering the fundamental right of every person in this state to have prompt access to information in the possession of public agencies.

How this affects your agency: The process set up by the Legislature in the Public Records Act must be followed. Once the agency denies a request for documents it is the requesting member of the public that has the responsibility to initiate legal action, not the holder of the documents. An agency may not engage in conduct that has a "chilling" affect on members of the public, seeking to gain access to public records, by exposing them to unwanted financial obligations.

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CRIMINAL LAW-PROCEDURE

No Requirement By Police To Advise Bus Passengers Of Their Right Not To Cooperate And To Refuse Consent To Search

UNITED STATES v. DRAYTON, et al. 2002 DJDAR 6707, 122 S. Ct. 2105; 153 L. Ed. 2d 242

The driver of a bus on which Christopher Drayton and Clifton Brown, Jr. were traveling allowed three police officers to bard as part of a routine drug and weapons interdiction effort. One officer knelt on the driver's seat, facing the rear of the bus, while another officer stayed in the rear, facing forward. Officer Lang worked his way from back to front, speaking with individual passengers as he went.

To avoid blocking the aisle, Lang stood nest to or just behind each passenger with whom he spoke. As Lang approached Drayton and Brown, who were seated together, he held up his badge long enough for them to identify him as an officer. Speaking just loud enough for them to hear, he declared that the police were looking for drugs and weapons and asked if they had any bags. When both pointed to a bag overhead, Lang asked if they minded if he checked it. Brown agreed, and a search of the bag revealed no contraband.

Lang then asked Brown whether he minded if Lang checked his person. Brown agreed, and a pat-down revealed hard objects similar to drug packages in both thigh areas. Brown was arrested. Lang then asked Drayton, "Mind if I check you?" When Drayton agreed, a pat-down revealed objects similar to those found on Brown, and Drayton was arrested. A further search revealed that Drayton and Brown had taped cocaine to themselves.

Charged with federal drug crimes, both moved to suppress the cocaine on the ground that their consent to the pat-down searches was invalid in denying the motions, the District Court determined that the police conduct was not coercive and the Drayton and Brown involuntarily consented to the search. The Eleventh Circuit reversed and remanded based on its prior holdings that bus passengers do not feel free to disregard officers' requests to search, absent some positive indication that consent may be refused. The United States Supreme Court reversed and remanded, holding that the Fourth Amendment does not require police officers to advise bus passengers of their right to not cooperate, and to refuse consent to searches.

The Supreme Court pointed out that in Florida v. Bostick, 501 U.S. 429, it held that the Fourth Amendment permits officers to approach bus passengers at random to ask questions and request their consent to searches, provided a reasonable person would feel free to decline the requests or otherwise terminate the encounter. Applying their Bostick framework, the Court pointed out that Drayton and Brown were not seized and the officers gave the passengers no reason to believe that they were required to answer questions.

Here, the Court said, there were ample grounds to conclude that Drayton's and Brown's encounter was cooperative and not coercive or confrontational. There was no overwhelming show or application of force, no intimidating movement, no brandishing of weapons, no blocking of exists, no threat, and no command, not even an authoritative tone of voice, and concluded that Drayton and Brown were not subjected to an unreasonable search.

How this affects your agency: Unlike many cases the Supreme Court outlines what the officers did right and can be used for training material on the proper technique in routine interdiction actions in contacting those who travel via bus.

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Pitchess Motion Is Proper Discovery Vehicle To Obtain Police Officer's Prior Law Enforcement Employment History

FLETCHER v. SUPERIOR COURT OF ALAMEDA COUNTY (Oakland Police Department) 2002 DJDAR 8173, 100 Cal. App. 4th 386; 123 Cal. Rptr. 2d 99

Christopher Fletcher was charged with unlawfully resisting, delaying or obstructing a police officer and pled "not guilty." Fletcher then filed a Pitchess motion which the Oakland Police Department opposed. The trial court found that Fletcher had made a showing of materiality that was sufficient to permit discovery of prior complaints of excessive force or violence, as well as potential evidence suggestive of fabrication of facts by the arresting officers. Thereafter, the trial court conducted an in camera inspection of the officers' personnel files and ordered that certain matters described in the files should be disclosed to Fletcher.

Fletcher also argued that he was entitled to discovery of prior employment by other police agencies within the five-year time limitation provided by Evidence Code §1045(b)(1), and requested and order seeking: "Disclosure of subject officer[s'] employment at other police departments or agencies within five years of the date of the event or transaction which is the subject of the above-entitled litigation... ." the Oakland Police Department objected and argued that all information contained in its files pertaining to prior employment by other law enforcement agencies was privileged and could not be disclosed, as a matter of law. The trial court sustained the Oakland Police Department's objection.

The California Court of Appeal First Appellate District, issued a peremptory writ of mandate commanding the superior court to vacate that portion of its order sustaining the Oakland Police Department's objection to production of portions of the officers' personnel files pertaining to length of employment by the Oakland Police Department and employment by other law enforcement agencies.

The Court pointed out that it was hard to see how the mere fact of prior police employment was deserving of more protection then other types of employment history, such as citizen complaints alleging misconduct. Oakland Police could have produced records responsive to the request showing the dates of employment by Oakland and identifying only the location of prior police employers within the five years. Nothing more was requested.

The Court concluded that nothing in the statutory scheme, which codified the principles set forth in "Pitchess," precluded disclosure of the length of an officer's present employment or potentially relevant facts relating to law enforcement employment other than the officer's current job.

How this affects your agency: Where a Pitchess Motion requests, among other things, prior employment of the subject officer, and that employment is within the five year period, the request should be honored once the Court has held it's in camera hearing, regardless of whether or not the court orders release of any current employment documents. As the Court pointed out, statutes codifying the Pitchess motion require the intervention of a trial judge to examine the personnel records privately. The judge may order disclosed to the defendant only those records that are found to be potentially relevant and otherwise in compliance with the statutory exceptions. "In this matter, the Legislature has attempted to protect the defendant's right to a fair trial and the officer's interest in privacy to the fullest extent possible." People v. Mooc, 26 Cal. 4th 1216 (2001).

[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.