Jones&Mayer - Case Updates

Raquel Salazar was hired as a bus driver to transport developmentally disabled adults and children. Ernest Rocha, one of the passengers, had been disruptive on past occasions and three female drivers filed reports of incidents in which Rocha exposed himself to them prior to Salazar's employment.

Salazar drove a few days with another driver, David, to learn the route and Rocha was a passenger. On days when she worked with David, Rocha got out of his seat and touched Salazar's hair, called her "bonita," meaning beautiful and wanted to be by Salazar's side. Salazar had to place Rocha back in his seat on several occasions. Although uncomfortable from the start with Rocha's actions, Salazar continued to drive the route.

On one occasion Salazar stopped the bus to put Rocha back in his seat and saw Rocha's zipper and belt down and his genitals exposed and Rocha tried to grab her arms. A second incident occurred shortly thereafter while Salazar stopped the bus and was waiting to pick up another passenger. Looking in her mirror, Salazar saw Rocha coming toward her. Salazar tried to get out of her seat, but Rocha attacked her and exposed his genitals. Salazar yelled for help from nearby drivers who were waiting for passengers and hit Rocha with her arm. Rocha touched her all over and tried to put his hands under her shirt and shorts. Salazar scratched his face, honked the horn, and tried to kick him. The attack ended when two male drivers from other buses came to her aid. Salazar submitted a written report and two days later decided she could no longer work for DPI and quit.

Salazar filed an action against DPI alleging four causes of action: sexual harassment in violation of the FEHA, and California Constitution, article I, section 8; constructive discharge in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress. The case was tried before a jury. At the conclusion of Salazar's case, defendants moved for a directed verdict, which the trial court granted.

The California Court of Appeal, Second Appellate District, affirmed judgement for the defendants, holding that Government Code section 12940, subdivision (j)(1) and (k) did not create employer liability when a non-employee client or customer sexually harasses an employee.

The Court noted that the Legislature considered proposed 1984 legislation which would have amended the statute to make an employer liable for harassment by clients or customers, but rejected that amendment and did not enact it into law. The Court also opined that the Legislature, not the court, should draft and enact statues that define the scope of employer liability.

The Appellate Court pointed out that employees have non-FEHA remedies against harassment by a client or customer. The employee retains the right to institute a lawsuit based on non-statutory causes of action, and can bring a civil action seeking both tort damages and injunctive relief. An employee who suffers harassment can obtain a temporary restraining order and an injunction pursuant to Code of Civil Procedure section 527.6. And, the Court noted, if harassment takes the form of sexual battery, the employee has a right of action in tort for damages and for injunctive and other equitable relief pursuant to Civil Code section 1708.5.

How this affects your agency: Although this court found no liability, departments would be remiss in not aggressively pursuing the rights of employees to be free from this type of activity where the agency has control over the client, customer, or vendor. Employees, however, should be reminded that their contacts and dealings with arrestees, detainees and members of the public in street situations, often will expose them to unwanted, unwelcome and unsolicited conduct.

Reserve Police Officer Not Entitled To CCW Endorsement As Honorably Retired Peace Officer

Richard Haas served as a reserve officer for the Berkeley Police Department from 1969 until 1996. Haas had obtained the training set forth in Penal Code section 832.6 and carried a firearm. Until the mid-1990's, reserve officers served on a volunteer basis and only received pay for time spent helping the police department at special events such as football games or street races. In 1995, under the Fair Labor Standards Act (29 U.S.C. 201, et seq.), Berkeley began paying the reserve officers minimum wage for all of the hours worked. In addition, the Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508 (42 U.S.C. 410(a)(7)) required that cities enroll all employees, including employees such as Haas, in social security or an equivalent plan if they were not members of the employer's retirement plans. Berkeley offered the Public Agency Retirement System (PARS), a social security alternate plan, to its hourly employees such as police department reserve officers.

Haas "retired" on August 31, 1996 and, under section 500.80 of the police department's Reserve Manual, was given a retirement badge and identification card. Relying upon a November 1995 Berkeley City Attorney legal opinion, the police department issued Haas an identification card containing an endorsement permitting him to carry a concealed weapon. In September 1997, the Berkeley City Attorney issued another legal opinion which stated that it "overrules and supersedes the entire legal opinion dated November 8, 1996." The new opinion concluded that "Under Penal Code section 12027(a), honorably retired reserve officers are not entitled to a CCW endorsement on their ID cards."

In 2001, Haas requested a renewal of his CCW endorsement, which was expiring in September 2001. Based on the 1997 city attorney opinion Haas was was notified that the police department did not have the authority to issue him a CCW endorsement. Haas filed a petition for writ of mandate requesting the court to order renewal of his CCW endorsement, which the trial court denied.

The California Court of Appeal, First Appellate District, affirmed, concluding that Haas did not satisfy the requirement of being an "honorably retired" peace officer under section 12027, subdivision (a)(1)(A), because he never qualified for and accepted a service or disability retirement.

The Court noted that the Legislature amended section 12027 in 1993 to define the term "honorably retired" as "all peace officers who have qualified for, and have accepted a service or disability retirement." But, the Court pointed out, the statute did not specify that "honorably retired" means simply qualifying for and accepting retirement; rather, it specifies that the person must qualify for and accept "service or disability" retirement. The Court also stated that, here, qualifying for PARS did not depend upon meeting a certain threshold for years of service and that Haas's retirement was simply an honorary recognition for years of service; it had no attendant monetary consequence.

Accordingly, by including a peace officer who qualified for and accepted a service or disability retirement, the Court concluded the Legislature intended to exclude reserve officers and short-term officers. The Court noted that the Legislature defined reserve officers as a category of peace officers under section 830.6. Section 12050, subdivision (a)(1)(C), provides that a police chief has the discretion to decide whether to issue an active reserve officer a license to carry a concealed weapon. If the police chief decides to issue a license to carry a concealed weapon to an active reserve officer, the reserve officer's concealed weapons license "shall be invalid upon the conclusion of the person's appointment pursuant to section 830.6 ... ." (Section 12050, subdivision (a)(2)(B)).

Haas, the court observed, may request permission to carry a concealed weapon under section 12050, but he has no "right" to a CCW endorsement, under section 12027.

How this affects your agency: In addition to clarifying that reserves are not entitled to CCW endorsements upon giving up their reserve status, this case is significant because it explicitly states that reserve officers DO NOT RETIRE; they merely stop working. Ceremonies, and the issuance of "retirement" badges for reserves, create a false impression that one has "retired." Such activities have been used in lawsuits by former reserves, against their former agencies, alleging that those actions by their agency proved they were entitled to "retirement benefits."

Additionally, agencies should secure advice regarding requirements of the Fair Labor Standards Act (29 U.S.C. 201, et seq) and payment for services. The Omnibus Budget Reconciliation Act of 1990 (42 U.S.C. 410(a)(7)), dealing with enrollment in social security or an equivalent plan, should also be reviewed. Departments should consult their City Attorney, County Counsel or designated Legal Advisor about these two issues.

[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.