DISCRIMINATION. November 2017 INDEX LCW NEWS. Appellate Court Upholds Jury Verdict for Officer Claiming FEHA Retaliation.

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1 November 2017 INDEX Discrimination...1 Firefighter Bill of Rights Act...3 LCW NEWS Congratulations...6 LCW Webinar...7 LCW Labor Relations Certification Program...8 LCW Conference...9 Firm Activities...10 Fire Watch is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Fire Watch should not be acted on without professional advice. Los Angeles Tel: San Francisco Tel: Fresno Tel: San Diego Tel: Sacramento Tel: DISCRIMINATION Appellate Court Upholds Jury Verdict for Officer Claiming FEHA Retaliation. The U.S. Court of Appeals for the Ninth Circuit affirmed a jury verdict in favor of three police officers of Latino descent who sued the City of Westminster, its Police Chief, and multiple former Chiefs. The lead plaintiff, Officer Jose Flores, claimed the Defendants violated the Fair Employment and Housing Act (FEHA) by, among other things, retaliating against him for filing a discrimination complaint with the Department of Fair Employment and Housing (DFEH). The other officers made similar claims. After a jury found in favor of the officers, the City moved for a new trial and renewed an earlier motion for judgment as a matter of law. The trial court denied both motions, and the Ninth Circuit affirmed. To prove unlawful retaliation, Flores was required to show that he engaged in protected activity, the City subjected him to an adverse action, and that the adverse action was substantially motivated by Flores protected activity. Here, Flores protected activity was filing a discrimination complaint with the DFEH. Flores then claimed that whereas he had never previously been disciplined or investigated, after he filed the DFEH complaint, he was removed from a list of available Field Training Officers (FTOs), and received written reprimands, verbal counseling, and a Supervisor s Log entry for various incidents. Flores presented evidence that other officers who engaged in similar conduct were not disciplined. In turn, the Defendants contended they had legitimate, non-retaliatory reasons for their conduct toward Flores; that the alleged retaliatory acts were not adverse actions within the meaning of the FEHA; and that the period between the time Flores filed his DFEH complaint and the first alleged adverse actions five months was too attenuated to establish causation. In addition, the evidence reflected that seven Latino officers were accepted to special assignments during the period of alleged discrimination against Flores and the other plaintiffs. Also, Flores received regular pay increases during his tenure and was awarded commendations and selected to serve on a patrol advisory group, even after he filed his DFEH complaint. Nevertheless, the Ninth Circuit found that the evidence at trial, when viewed in the light most favorable to Flores, could allow a reasonable jury to conclude there was unlawful retaliation. In support, the court referenced testimony that workplace policies were applied inconsistently to Flores, and found that Flores presented sufficient evidence for the jury to conclude he was subjected to adverse employment actions, emphasizing that the alleged actions spanned approximately three years. The court therefore affirmed the jury s verdict in Flores favor. Flores v. City of Westminster (9th Cir. 2017) 873 F.3d Liebert Cassidy Whitmore lcwlegal.com

2 2 Fire Watch NOTE: The legal standards that apply to a motion for a new trial and reversal of a jury verdict make it extremely difficult to successfully challenge a jury verdict, in particular because an appellate court must review the trial evidence in the light most favorable to the prevailing party. Correctional Officers Could Not Pursue Discrimination Claims in Court After Loss at WCAB. In Va Ly v. County of Fresno, the California Court of Appeal held that the plaintiff employees were legally barred from bringing a lawsuit under the Fair Employment and Housing Act (FEHA) for an alleged harm already pursued to final judgment in proceedings before the California Workers Compensation Appeals Board (WCAB). The plaintiffs in the case, three Laotian correctional officers, sued the County alleging race and national origin discrimination, harassment, and retaliation under the FEHA. However, before commencing their action, the officers pursued workers compensation claims with the WCAB. In those proceedings, the officers asserted that they suffered psychological harm likewise arising from discrimination, harassment, and retaliation to which the County allegedly subjected them. In each case, the WCAB determined that the conduct at issue constituted good faith personnel actions that were nondiscriminatory and based on business necessity. When the officers attempted to re-assert the same claims of discrimination, harassment and retaliation at the trial court this time asserting FEHA remedies rather than workers compensation remedies the County moved for summary judgment on the basis of res judicata. The doctrine of res judicata prevents a party from litigating claims in one legal forum (e.g., before an administrative enforcement agency such as the WCAB), and then re-asserting the same claims later in a second forum (e.g., a trial court). Res judicata only applies if the earlier proceedings resulted in a final decision; the same legal causes of action are at issue; and the parties in both proceedings are the same. The trial court granted the County s motion, holding that the WCAB decisions barred the officers FEHA claims. The Court of Appeal affirmed, finding that all three criteria of res judicata were met. It emphasized that the officers were seeking to enforce identical rights to those in the workers compensation proceedings freedom from discrimination, harassment and retaliation in the workplace and that the claims in each forum involved the same injury, i.e. psychological harm. It was also key that in the workers compensation cases, the County affirmatively disproved that it engaged in unlawful discrimination. Va Ly v. County of Fresno (2017) 223 Cal.Rptr.3d 875. NOTE: Here, the fact that the County had already disproven the Officers claims in another forum was essential to the appellate court s decision in the County s favor. Boss s Son-in-Law Could Not Prove Marital Status Discrimination or Failure to Investigate. The case involved claims by Orlando Nakai (Orlando), who was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program. Orlando s wife, Karen, was also an employee of Friendship House. The program s CEO, Helen Waukazoo (Helen), was Orlando s mother-in-law. Karen and Orlando began having marital difficulties. In May 2016, Karen called Helen to inform her that Orlando had relapsed with drugs, and was armed with a gun, dangerous, and angry with program employees. The next day, Helen put Orlando on paid administrative leave. Karen obtained a temporary restraining order (TRO) against Orlando and provided Helen with a copy. Helen then terminated Orlando s employment based upon the information that Karen provided to her. Orlando filed a lawsuit claiming discrimination in violation of the Fair Employment and Housing Act (FEHA). Specifically, Orlando alleged he was terminated because he was married to the daughter of the Friendship House CEO, which he claimed was unlawful marital status discrimination. Orlando also claimed that Helen, as the Friendship House CEO, had a duty to investigate Karen s allegations that Orlando was armed and dangerous, and that Helen violated the FEHA when she failed to do so. The appellate court affirmed summary judgment in favor of the employer because Orlando failed to establish the prima facie elements of a FEHA violation.

3 November Orlando asserted that the FEHA prohibits marital status discrimination in employment. Under the FEHA, it is unlawful [f]or an employer, because of marital status... to bar or to discharge [a] person from employment. Examples of unlawful marital status discrimination include an employer s refusal to hire someone who is married, or an employer policy that only provides maternity leave to married employees. To prove unlawful marital status discrimination, Orlando was required to show some action taken by Friendship House that would permit an inference that the action was, more likely than not, based on a discriminatory factor covered under the FEHA. As the appellate court explained, the FEHA prohibits discrimination against classes of people based on their married or unmarried status. It does not prohibit termination based on an employee s marriage to a specific person. Orlando s claim failed because he claimed he was treated differently based upon the identity of the person to whom he was married (the Friendship House CEO s daughter), and not because of his status as a married individual. He also claimed Helen terminated him to influence the outcome of a custody dispute between Orlando and Karen a family dynamic issue, not a marital status issue. The appellate court also found that summary judgment in favor of the employer was appropriate because Friendship House had presented evidence that it had a legitimate non-discriminatory reason for terminating Orlando. A legitimate reason is one that is unrelated to bias prohibited by the FEHA and which, if true, would preclude a finding of unlawful discrimination, even if the reason is unwise or imprudent. In this case, Friendship House s evidence showed that, consistent with its policies prohibiting threats against employees, it terminated Orlando because of concerns that he would harm Karen. Orlando presented no evidence indicating this was a pretext for discrimination. The appellate court also affirmed summary judgment on the ground that Friendship House was not required by the FEHA to conduct an investigation of Orlando s threats prior to terminating him. The FEHA creates an employer obligation to investigate claims of harassment made by a potential victim of harassment. However, nothing in the law creates an employer obligation to the alleged perpetrator of the harassment. Because Orlando s complaints incorrectly assumed that the FEHA investigation obligations applied to him as a perpetrator of the threats of violence, the complaints were not cognizable under the FEHA. In sum, Orlando s FEHA claims failed because he did not present evidence to support a viable claim of marital status discrimination. The employer presented undisputed evidence of a legitimate non-discriminatory reason for his termination, i.e. prevention of workplace threats and violence, and had no obligation to investigate harassment claims on behalf of the perpetrator of the alleged harassment. Nakai v. Friendship House Association of American Indians, Inc. (2017) 15 Cal.App.5th 32. NOTE: This case illustrates the limits of a marital status discrimination claim. The employee must actually show that marital status i.e., being married or unmarried was the reason for the alleged discrimination. By contrast, to whom one is married is an immaterial matter in establishing a FEHA claim. The case is also a reminder that prevention of workplace violence is a legitimate, non-discriminatory reason for disciplining or taking other adverse actions against an employee. FIREFIGHTER BILL OF RIGHTS ACT Firefighters Rights to Investigation Materials Frequently Asked Questions Regarding Santa Ana Peace Officers Assn. v. City of Santa Ana. On October 18, 2017, the California Supreme Court denied review of Santa Ana Police Officers Association, et al. v. City of Santa Ana et al., a decision from the Fourth District Court of Appeal regarding what materials must be provided to a law enforcement officer in connection with a disciplinary interrogation under the Public Safety Officers Procedural Bill of Rights Act. The decision is concerning to law enforcement employers because it seems to contradict earlier cases holding that an officer is not entitled to any materials prior to an interrogation. Under the Santa Ana decision, officers may have a right to stenographer notes, reports and/or complaints prior to a second or latter interrogation.

4 4 Fire Watch What does Santa Ana P.O.A. v. City of Santa Ana require? In Santa Ana, the Court of Appeal held that the union s complaint stated a cause of action against the city for violation of Government Code section 3303(g) to the extent it alleged that upon being notified that they would be interviewed a second time in an administrative investigation, the subject police officers were denied (after requesting) all required documents described in Section 3303(g), i.e. a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons. Therefore, it appears that under Santa Ana, before conducting a second interrogation of a subject employee, an employer must not only provide the employee with access to a copy of the recording of their prior interviews in the case, but also transcripts, reports, and complaints. What s the big deal? Since the California Supreme Court published its decision in Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, police departments have acted on the basis that discovery was not required to be provided to a subject officer before an interrogation, regardless of whether it was the first or a subsequent interrogation. In that case, the California Supreme Court said, [d]isclosure before interrogation might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned. Id. at 579. It also said: to require disclosure of crucial information about an ongoing investigation to its subject before interrogation would be contrary to sound investigative practices. During an interrogation, investigators might want to use some of the information they have amassed to aid in eliciting truthful statements from the person they are questioning. Mandatory preinterrogation discovery would deprive investigators of this potentially effective tool and impair the reliability of the investigation. This is true in any interrogation, whether its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace officer used a mailing list in contravention of a direct order by his superiors. Id. The holding in Santa Ana, however, appears to contradict the earlier guidance of the Supreme Court and threatens to undermine the effectiveness of administrative investigations. However, the California Supreme Court denied review of the Santa Ana decision. Thus, the question is what should employers do, if anything, in light of the seemingly contradictory holdings of Santa Ana and Pasadena POA. Does Santa Ana apply to all employers outside of the Fourth Appellate District? Yes. While the Fourth District only covers Imperial, Inyo, Orange, Riverside, San Bernardino and San Diego Counties, it is a published decision and may be cited as binding authority in all California courts. California Rules of Court, Rule (d). In Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 the California Supreme Court explained that, [t] he decisions of [the Supreme] [C]ourt are binding upon and must be followed by all the state courts of California. Decisions of every division of the... Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. It should be noted that a decision by the California Supreme Court not to review the decision by the Court of Appeal does not necessarily indicate the Supreme Court agrees with the Court of Appeal. See, e.g., California Civil Appellate Practice (3d Ed. 2017), Vol. 2., What are the risks of not following Santa Ana? An affected employee could seek judicial relief in superior court. Government Code section (a) states: It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter. Government Code section (c) states: The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter. In turn, if the superior court finds that a violation occurred, it has broad discretion to fashion a remedy. For example, a court could prohibit the employer from imposing punitive action in a case or otherwise limit the use of evidence gathered in an investigation. Government Code section (d)(1): In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive

5 November or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer. What steps can I take to limit the negative consequences of the Santa Ana case? The safest course of action is to provide an officer with the recording of his or her prior interview(s) and as well as complaints and reports prior to conducting a second interrogation. However, if you are concerned that doing so could undermine the effectiveness or integrity of an ongoing investigation, then you may consider: Only conduct one interview near the completion of the investigation. The law still does not entitle an officer to discovery prior to his or her first interrogation. If a second or latter interrogation is not conducted, then the Santa Ana decision is not implicated. Do not transcribe witness interviews or draft any reports until you are certain that there is no need to conduct any further interrogation of the subject employee. That way there are no stenographer notes or reports to have to provide. Determine whether to seek declaratory relief from a court under Code of Civil Procedure section 1060 that materials do not need to be disclosed. However, seeking judicial intervention can be costly, delay the investigation, and not ultimately achieve the result that you want. Consider declaring the reports and complaints confidential and do not place them in the officer s personnel file pending completion of the investigation, including any follow-up interrogations. Section 3303(g) provides: [t] he public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer s personnel file. [Emphasis added.] Note that no case has ever interpreted this provision in the specific context of an officer s potential right to discovery prior to a second or latter interrogation. However, in Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, at , the Court of Appeal stated: Nothing in the section limits an investigating agency s power to designate reports confidential to materials protected by statutory privilege. Logically, an investigating agency exercising its power under section 3303, subdivision (g), could choose to deem portions of a report confidential, which in effect is what the Department impliedly did in this case by providing only limited disclosures in the chief s case. In response to the writ petition, the City of Sunnyvale asserted that the peripheral documents and materials to which [Gilbert] claims he has been denied access are covered by the exception for confidential materials. Under section 3303, subdivision (g), the repercussion of deeming an item confidential is that it may not be entered in the officer s personnel file. The implication is that the employing department may not make adverse personnel decisions concerning the officer based on reports, or the portions thereof, deemed confidential and not made available to the officer. [Emphasis added.] Is there a basis to argue that discovery does not have to be provided before interrogating an officer a second time? Yes. The Santa Ana case is binding authority, but there is other binding authority, discussed below, that arguably contradicts it. Therefore, if an employer did not provide discovery to an officer under Section 3303(g) before conducting a second interrogation, and the officer sought judicial relief, a court would potentially have to choose between complying with Santa Ana or other cases. As mentioned, there is a basis to argue that the Santa Ana decision contradicts the Supreme Court s decision in Pasadena Police Officers Assn. v. City of Pasadena, supra. In that case, the Supreme Court held: Based on our review of the statutory language and the purpose underlying the Act, we conclude that the Legislature intended subdivision (f) to require law enforcement agencies to disclose reports and complaints to an officer under an internal affairs investigation only after the officer s interrogation. Because entitlement to preinterrogation discovery is neither apparent from the language of subdivision (f) nor fundamental to the fairness of an internal affairs investigation, and because such mandatory discovery might jeopardize public confidence in the efficiency and integrity of its police force, we decline to engraft such a right onto the Act.

6 6 Fire Watch Although the statute does not compel preinterrogation discovery, it does not preclude a law enforcement agency from providing such discovery. Also, in Sunnyvale the Court of Appeal said: It is unreasonable to suppose that the Legislature intended section 3303, subdivision (g), to afford an officer under investigation far-reaching disclosure rights, akin to the statutory discovery rights in criminal prosecutions, following an administrative interrogation of the officer when the Act does not expressly so provide but rather gives the investigating agency power to deem reports confidential, excludes such confidential items from the duty to disclose, and provides no mechanism for challenging such designation. The more reasonable interpretation, in light of the other features of section 3303 and other provisions of the Bill of Rights Act, is that the minimal rights of disclosure included in subdivision (g) were intended to prevent grossly abusive interrogation tactics and protect an officer s personnel file. The Sunnyvale court s interpretation of the discovery rights afforded by the statute also arguably contradicts the interpretation given Section 3303(g) in Santa Ana. Reading Pasadena and Sunnyvale, together in the context of the wording of Section 3303(g), we believe that a very reasonable argument may be made that an officer s right to copies of stenographer notes, reports and complaints does not arise until after all interrogations in an investigation have been completed and an investigation is concluded. However, in light of Santa Ana, it is also possible that a court will disagree. Congratulations to our San Diego Associate, Stephanie Lowe and her husband Scott on the arrival of their son, Logan. Congratulations to our Los Angeles Marketing & Training Coordinator, Crystal Adams and her husband Cameron, on the arrival of their son, Owen. We wish both families much happiness!

7 November LCW Webinar: 2018 Public Agency Legislative Update Wednesday December 13, AM - 11 AM The California legislature passed numerous bills, which will go into effect on January 1, 2018, that will impact California employers. This webinar will provide an overview of key legislation, that will impact California s public employers, including Cities, Counties, and Special Districts. Presented by: Gage C. Dungy Who Should Attend? Management and Supervisory Personnel, Human Resources Staff and Agency Counsel. Workshop Fee: Consortium Members: $70 Non-Members: $100 Viewing Options: Live Recording Live & Recording Register Today: webinars-seminars

8 8 Fire Watch The Liebert Cassidy Whitmore Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. These workshops combine educational training with experiential learning methods ensuring that knowledge and skill development are enhanced. Participants may take one or all of the Certification programs, in any order. Take all of the classes to earn your certificate! Next Class: Bargaining Over Benefits January 31, 2018 Fullerton, CA Benefit provisions continue to get complicated with retirement, health, FLSA compliance, IRS compliance, retiree medical, and leaves of absence. Understanding the interplay of state and federal laws and MOU provisions is important let us uncomplicated some complicated subjects, provide tips for compliance, and offer strategies for your agency to consider. Register Now! labor-relations-certification-program/bargaining-over-benefits Learn More at

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10 10 Fire Watch Management Training Workshops Firm Activities Consortium Training Dec. 13 Dec. 13 Dec. 14 Dec. 14 Dec. 14 Dec. 14 A Guide to Implementing Public Employee Discipline Gateway Public ERC Pico Rivera James E. Oldendorph Jr. Public Service: Understanding the Roles and Responsibilities of Public Employees and Workplace Bullying: A Growing Concern San Gabriel Valley ERC Alhambra Laura Kalty & Alison R. Kalinski Maximizing Supervisory Skills for the First Line Supervisor Imperial Valley ERC El Centro Kristi Recchia Risk Management Skills for the Front Line Supervisor Los Angeles County Human Resources Los Angeles Christopher S. Frederick Risk Management Skills for the Front Line Supervisor San Mateo County ERC Foster City Suzanne Solomon Administering Overlapping Laws Covering Discrimination, Leaves an Retirement South Bay ERC Torrance Mark Meyerhoff & Goldman, Magdalin and Krikes Customized Training Dec. 5 Dec. 6 Dec. 7 Dec. 12 Dec. 19 Dec. 20 Key Legal Principles for Public Safety Managers - POST Management Course Peace Officer Standards & Training - POST San Diego Frances Rogers Preventing Workplace Harassment, Discrimination and Retaliation City of Stockton Kristin D. Lindgren Risk Management Skills for the Front Line Supervisors ERMA Cathedral City Christopher S. Frederick Creating a Positive and Productive Workplace Ventura Regional Sanitation District Oxnard (1st session) & Santa Paula (2nd session) Kristi Recchia Best Practices in Personnel Management Santa Clara County Fire Department Campbell Heather R. Coffman Creating a Positive and Productive Workplace Ventura Regional Sanitation District Ventura Kristi Recchia Speaking Engagements Dec. 6 Dec. 6 Dec. 6 Labor Relations Game Show California Public Employer Labor Relations Association (CALPELRA) Annual Training Conference Monterey Laura Kalty & J. Scott Tiedemann Wage and Hour Audits and Litigation: Lessons Learned and Solutions Being Implemented CALPELRA Annual Training Conference Monterey Richard Bolanos & Jesse Maddox Hot Topics at the Table CALPELRA Annual Training Conference Monterey Shelline Bennett & Donna Williamson

11 November Dec. 7 Dec. 7 Dec. 7 Dec. 8 Dec. 8 Dec. 13 Dec. 13 Dec. 14 Dec. 19 Recognizing, Addressing, and Accommodating Mental Disabilities CALPELRA Annual Training Conference Monterey Laura Kalty & Jennifer Rosner FLSA Today CALPELRA Annual Training Conference Monterey Peter J. Brown & Lisa S. Charbonneau MOU Review: How to Comply With the Law and Clean Up That Language! CALPELRA Annual Training Conference Monterey Peter J. Brown & T. Oliver Yee What Are They Thinking? Demystifying The PERB Process CALPELRA Annual Training Conference Monterey Erich W. Shiners & Anita Martinez & Timothy Yeung Labor Relations Training California State Association of Counties (CSAC) Labor Relations Class Sacramento Richard S. Whitmore & Richard Bolanos & Gage C. Dungy Legal Update International Public Management Association Central California Chapter (IMPA-CCC) Meeting Merced Shelline Bennett Strategies for Success in Performance Management League of California Cities- City Clerks New Law & Elections Seminar 2017 Newport Beach Kristi Recchia Employment Law Legal Updates North Bay IPMA-HR Chapter Fairfield Gage C. Dungy Labor and Employment Round Up Sacramento County Bar Association (SCBA) Labor and Employment Committee Sacramento Erich W. Shiners Seminars/Webinars Register Today: Dec Legislative Update for Public Agencies Liebert Cassidy Whitmore Webinar Gage C. Dungy

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