personnel litigation update supplement - Cal Cities

transcript

Colantuono & Levin, PC

PERSONNEL LITIGATION UPDATESUPPLEMENT

League of California CitiesCity Attorneys Department

Spring ConferenceSan Diego, California

May 5, 2004

presented by

Kenneth C. HardySenior Counsel

Jeffery A. LewisAssistant City Attorney

City of Inglewood

Colantuono & Levin, PC555 West 5th Street, 31st FloorLos Angeles, CA 90013-1048

(213) 533-4206 (direct)(213) 533-4191 (fax)

khardy@cllaw.uswww.cllaw.us

70444.1

TABLE OF CONTENTS/INDEX––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Personnel Litigation Update Supplement

League of California Cities, City Attorneys Department

May 5, 2004

PERSONNEL LITIGATION UPDATESUPPLEMENT

DISCRIMINATION - RACE/NATIONAL ORIGIN

Rivera v. NIBCO, Inc. (9th Cir. 2004) WL 771283.......................................................................1

DISCRIMINATION - SEXUAL HARASSMENT

Lyle v. Warner Brothers Television Productions (2nd Dist. 2004) 2004 WL48203.....................3

DISCRIMINATION - RELIGION

Bodett v. CoxCom, Inc. (9th Cir. 2004) 2004 WL 877643.............................................................4

FREE SPEECH/WHISTLEBLOWING

CalMat Company v. U.S. Department of Labor (9th Cir. 2004) 2004 WL 829895......................6

Settlegoode v. Portland Public Schools (9th Cir. 2004) 326 F.3d 1118 ........................................7

Ventura County Federation of College Teachers v. Ventura County

Community College District (September 24, 2003) 27 PERC 133 (PERB) ..................................9

Sacramento Police Officers Assn. v. City of Sacramento (3rd Dist. 2004)

2004 WL 626025, as modified (Apirl 8, 2004)............................................................................10

EMPLOYMENT STATUS/RETIREMENT BENEFITS

Salus v. San Diego County Employees Retirement Assn. (4th Dist. 2004)

2004 WL 440985............................................................................................................................12

PERSONNEL RECORDS

Haggerty v. Superior Court (Guindazola) (4th Dist. 2004) 2004 WL 836313 ...........................13

May 5, 2004

Discrimination - Race/National Origin

Rivera v. NIBCO, Inc. (9th Cir. 2004) 2004 WL 771283..............................................................1

Discrimination - Sexual Harassment

Lyle v. Warner Brothers Television Productions (2nd Dist. 2004) 2004 WL 848203..................3

Discrimination - Religion

Discrimination - Sexual Orientation

Free Speech

Settlegoode v. Portland Public Schools (9th Cir. 2004) 2004 WL 720249...................................7

Whistle-Blowing

2004 WL 626025, as modified (Apirl 8, 2004).............................................................................10

Employment Status/Retirement Benefits

Salus v. San Diego County Employees Retirement Assn. (4th Dist. 2004)

2004 WL 440985............................................................................................................................12

May 5, 2004

Personnel Records

Employment Probation

Qualified Immunity

Discipline

Public Safety

2004 WL 626025, as modified (Apirl 8, 2004).............................................................................10

Due Process/Procedure

Rivera v. NIBCO, Inc. (9th Cir. 2004) 2004 WL 771283..............................................................1

DISCRIMINATION - RACE/NATIONAL ORIGIN––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Rivera v. NIBCO, Inc. (9th Cir. 2004) 2004 DJDAR 4529

An employer does not have the right to propound discovery asking former

employees about immigration status when such employees have filed a

discrimination action on the basis of national origin under Title VII and FEHA.

Plaintiffs, twenty-three immigrants with limited English proficiency, were factoryworkers of NIBCO. Although their job descriptions did not require Englishproficiency, NIBCO required plaintiffs to take basic job skills examinations givenonly in English. Plaintiffs failed the exams and were eventually terminated.Plaintiffs alleged that they had previously performed their job duties successfully.Plaintiffs sued in federal district court alleging disparate impact discriminationbased on national origin under Title VII and FEHA.

During a deposition, NIBCO asked a plaintiff where she was married and whereshe was born. Her attorney instructed her not to answer any questions regardingimmigration status and terminated the deposition. Plaintiffs filed for a protectiveorder against further questions pertaining to immigration status. The federalmagistrate presiding over discovery issued a protective order that barreddiscovery with respect to plaintiffs’ immigration status, but did not bar NIBCOfrom conducting its own independent investigation. The magistrate found thatallowing such discovery would unnecessarily chill legitimate claims ofundocumented workers under Title VII.

The district court denied a motion to reconsider. NIBCO filed a motion to certifythe discovery ruling for interlocutory appeal. The United States Supreme Courtthen issued its decision in Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535U.S. 137. Hoffman held that the NLRB lacked the discretion to award backpay toundocumented workers seeking relief for an employer’s unlawful employmentpractices under the National Labor Relations Act. NIBCO filed a second motionto reconsider, claiming that after Hoffman each Plaintiff’s immigration status wasdiscoverable because of its direct relevance to potential remedies. The districtcourt denied NIBCO’s request for reconsideration and certify the order forinterlocutory appeal.

The Ninth Circuit affirmed the decision of the district court and held that thedistrict court’s decision not to disturb the magistrate’s order was neither clearlyerroneous nor contrary to law. A district court may issue any discovery protectiveorder “which justice requires to protect a party or person from annoyance,embarrassment, oppression, or undue burden or expense.”

DISCRIMINATION - RACE/NATIONAL ORIGIN––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Given Title VII’s dependence on private enforcement, requiring Plaintiffs toanswer discovery questions regarding immigration status would not only deterthem and future plaintiffs from bringing meritorious suits under Title VII toredress their own injuries, it would also unduly burden the public interest byhampering the national effort to eradicate discrimination in the workplace.

No private interest of NIBCO outweighs these concerns. First, Hoffman verylikely does not preclude an award of backpay to illegal immigrants under TitleVII. Unlike the NLRA, which is primarily enforced by the NLRB, Title VII isprimarily enforced through private actions; Title VII’s remedies are moreextensive than those of the NLRA; and a federal district court’s discretion is muchbroader than the discretion of the NLRB. Even if Hoffman precluded such awardof backpay, it does not make immigration status relevant to the determination ofwhether a defendant is liable for national origin discrimination under Title VII.Second, the “after-acquired evidence” doctrine, which precludes or limits anemployee from receiving remedies for wrongful discharge if the employer laterdiscovers evidence of wrongdoing that would have led to the employee’stermination had the employer known of the misconduct, does not change theruling. To use this doctrine an employer must show that had it been aware of theafter acquired evidence, it would have discharged the employee. Many employershave a perverse incentive to ignore immigration laws at the time of hiring butinsist upon their enforcement when their employees complain. No evidence in therecord satisfies this burden of NIBCO. Third, with respect to the FEHA claim, in2002 the California Legislature enacted legislation (Cal. Civil Code section3339(a)) that effectively overturned existing case law that denied recovery forwrongful discharge of an undocumented alien.

In concurrence, Judge Siler opined that the district court may later in itsproceedings, after liability has been ascertained, allow NIBCO to inquire into thematter of immigration status, and reiterated that the Ninth Circuit’s ruling was onan interlocutory appeal, not the merits of the case.

DISCRIMINATION - SEXUAL HARASSMENT––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Lyle v. Warner Brothers Television Productions (2nd Dist. 2004)

2004 DJDAR 4868

“Creative necessity” (analogous to “business necessity”) is not an affirmative

defense to sexual harassment but is a factor that the jury may consider among

many factors in determining whether a hostile work environment exists.

Amaani Lyle, a female writer’s assistant for the show “Friends,” complained thatseveral writers with whom she worked with constantly made crude and sexualremarks, recounted sexual exploits real and imagined, made lewd and sexualgestures, and displayed crude sexual pictures of women. Defendants claim thatnone of the behavior was directed at Lyle personally. Defendants claim theyterminated Lyle after four months because she could not type fast enough. Lylesued Defendants under FEHA alleging, among other things, sexual harassment.The trial court granted Defendants’ motion for summary judgment.

The Court of Appeal reversed with respect to the sexual harassment claim. TheCourt stated that there were triable issues of fact as to whether Lyle sufferedharassment based on sex. Defendants’ contention that none of the conduct inquestion was personally directed at Lyle, that Defendants did not intend to harassLyle, and that Defendants treated Lyle “just like one of the guys,” were notdefenses. The Court found that there was sufficient evidence from which areasonable jury could find that the writers’ room was a hostile or offensive workenvironment for a woman. The Court found that Defendant’s argument – thatsuch behavior was necessary as part of the creative process for an adult-orientedsituation comedy that often deals with sexual matters, intimate body parts, andrisqué humor – was unique but had merit under the distinctive circumstances ofthe case. However, since “context” is only one factor to be considered indetermining the existence of a hostile work environment, the “creative necessity”theory was not an affirmative defense and would have to be pursued before a jury.

Significance. The significance of the case is probably limited to being a reminderthat the behavior described of in the case is always outside the scope of necessaryjob performance in the context of a public agency. The “boys will be boys” or“shop talk” defense is no defense.

DISCRIMINATION – RELIGION––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Bodett v. CoxCom, Inc. (9th Cir. 2004) 2004 DJDAR 5008

Immediate termination of supervising Christian employee, who made

inappropriate statements to a subordinate lesbian employee about homosexuality,

was not religious discrimination under Title VII.

Evelyn Bodett, an evangelical Christian employee, supervised Kelley Carson, alesbian employee. Bodett told Carson that homosexuality was against herChristian beliefs, that Carson’s homosexual relationship was the cause ofunhappiness in Carson’s life, that homosexuality was a sin, and that she (Bodett)would be disappointed if Carson continued to date women. Carson later statedthat she did not feel threatened or harassed by Bodett’s initial comments at thetime, and even went to church with her, but she later complained to anotheremployee about Bodett’s treatment of her sexuality. Carson accepted a promotionin another CoxCom office. When asked by a manager why she was leaving,Carson stated she was leaving because she was uncomfortable with Bodett’sstatements regarding her sexuality. She stated that she had not reported thestatements to human resources because she could not afford to lose her job. Wheninterviewed by management, Bodett admitted to making the statements.Management determined that Bodett had violated the company’s policy againstharassment and was terminated.

Bodett sued CoxCom in federal district court alleging, among other things,religious discrimination under Title VII. The district court granted summaryjudgment in favor of CoxCom.

The Ninth Circuit affirmed. A Title VII religious discrimination claim may bebrought under several possible theories, including disparate treatment on accountof religion or failure to accommodate religious beliefs. With respect to a disparatetreatment claim, under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792and its progeny, a three-step procedure is used. First, a plaintiff must establish aprima facie case. Under the recent case of Peterson v. Hewlett-Packard (9th Cir.2004) 358 F.3d 599, a plaintiff may establish a prima facie case of religiousdisparate treatment by showing that: (1) the plaintiff is a member of a protectedclass; (2) she was qualified for her position; (3) she experienced an adverseemployment action; and (4) similarly situated individuals outside her protectedclass were treated more favorably, or other circumstances surrounding the adverseemployment action give rise to an inference of discrimination.

DISCRIMINATION – RELIGION––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Bodett failed to make the showing on the fourth element of the test and thereforefailed to make a prima facie case. Even if Bodett had made such showing,ComCox satisfied the second step, i.e., it showed a legitimate non-discriminatoryreason for terminating Bodett. Bodett did not deny that she was on constructivenotice of the policy against harassment, and her admitted statements, from eitheran objective or subjective viewpoint, clearly fell within the gambit of harassmentunder the policy, particularly because Bodett was in a position of authority overCarson.

The third step required Burdett to show that ComCox’s reason was prextextual.The Court stated that reliance on her discipline and complaint-free record was notsufficient to raise an inference that ComCox was more likely motivated byreligion than by the behavior complained of by Carson. That Bodett’s expressionsmay in some way be protected as a bona fide religious belief was irrelevant to adisparate treatment inquiry, and would be better suited to a failure toaccommodate claim, which Bodett did not make. Burdett’s attempt to show,alternatively, that ComCox’s stated reason for the termination was “unworthy ofcredence” also failed. Despite the fact that Bodett helped Carson pursue the newjob and gave her an excellent review, the admitted statements of Bodett with asubordinate employee, without any other evidence, is sufficient to support areasonable conclusion that Bodett harassed Carson. Bodett’s argument thatComCox did not follow the discretionary steps that typically precede terminationwhen an employee violates the policy was not supported by the evidence. Bodettwas aware that under certain circumstances, an employee could be fired withoutprior warning. When management told Bodett that she was in gross violation ofcompany policy, Bodett admitted responding that “sometimes there is a highercalling than a company policy,” an acknowledgment that her actions may verywell have violated the policy. Because Bodett failed to offer any other evidence ofanimus towards her religious beliefs as the true motivation for her termination, orthat ComCox’s proffered reason for termination was false, she failed to raise agenuine issue of material fact as to whether the reason ComCox gave forterminating her employment was a pretext for discrimination.

Significance. Bodett’s status as a supervisor was significant in the Court’sdetermination that the underlying statements were harassment and that immediatetermination without prior notice was not improper. Unlike in Peterson (seePersonnel Litigation Update p. 12) no claim of failure to accommodate religiousbelief was made.

FREE SPEECH––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

CalMat Company v. U.S. Department of Labor (9th Cir. 2004) 2004

DJDAR 4746

Employee who filed complaints with OSHA about safety violations and was soon

thereafter disproportionately disciplined for alleged ethnic slurs was found to

have been retaliated against for filing the complaints.

Robert Germann, a shop steward, spoke with drivers about working too manyhours which he believed violated the Surface Transportation Assistance Act(“STAA”). He filed a complaint with the California Highway Patrol and laterreported the alleged violations to CalMat management. CalMat was eventuallyfound not to have violated STAA. In the meantime, an employee filed aharassment complaint against Germann alleging that he made ethnic slurs andused obscene language. Germann was disciplined and eventually terminated.Germann filed a complaint with OSHA alleging that he was disciplined formaking safety complaints in violation of the whistleblower protection provisionsof STAA. Germann prevailed before an Administrative Law Judge and theDepartment of Labor’s Administrative Review Board. CalMat petitioned forreview.

The Ninth Circuit denied CalMat’s petition. Germann had the ultimate burden ofproving that the reasons articulated for the discipline were a pretext for retaliation.The ALJ found that Germann had made a prima facie case of retaliation, whichCalMat rebutted. But Germann proved the articulated reasons were a pretext. Hewas suspended within days of making the safety complaints, the suspension wasunusually severe and beyond the criteria of CalMat’s progressive disciplinarystandards, and CalMat treated similar complaints involving racial slurs or sexualharassment less seriously.

Significance: Even if an employee mistakenly believes that workplace safetystandards have been violated, an employer cannot discipline the employee merelybecause they are aggravated by the employee’s claims. This case also illustrates aclassic example of trumping up charges in one matter (harassment in this case) inorder to punish an employee for some other unrelated undesirable behavior(complaining about workplace safety violations). See also Settlegoode for thisproblem (p. 7 of this supplement).

FREE SPEECH––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Settlegoode v. Portland Public Schools (9th Cir. 2004) 2004

DJDAR 4168

School district held liable for retaliation and violation of First Amendment rights

when it failed to renew the contract of a probationary teacher who complained to

her supervisors about inadequacies of the program for disabled students.

Pamella Settlegoode was hired as a probationary physical education teacher fordisabled students. After trying to talk to her immediate supervisor, she wroteinternal letters to her immediate supervisor’s supervisor alleging that the programwas inadequate and discriminated against disabled students and criticizing herimmediate supervisor for being unresponsive. The immediate supervisor askedSettlegoode to stop writing letters because it was not an effective means ofcommunication. The immediate supervisor, at the request of her own supervisor,responded in writing to Settlegoode defending the program. Although Settlegoodehad generally received favorable reviews during her probationary year,evaluations given after she wrote the letters were negative. Settlegoode alsocomplained in writing to the school district superintendent. The school district didnot renew Settlegoode’s contract.

Settlegoode sued the school district and the two supervisors as individuals infederal district court alleging, among other things, retaliation for her exercise offree speech in violation of her First Amendment rights under 42 U.S.C. §1983.The jury found for Settlegoode. The magistrate judge then ruled for defendants asa matter of law and held that the individual defendants were entitled to qualifiedimmunity as a matter of law. Settlegoode appealed.

The Ninth Circuit reversed and remanded with instructions that the court enterjudgment for Settlegoode consistent with the jury verdict. Citing Keyser v.

Sacramento Unified School District (9th Cir. 2001) 256 F.3d 741, the magistratejudge had found that Settlegoode could not as a matter of law establish retaliationfor exercise of First Amendment rights because, although there was substantialevidence that Settlegoode’s expression was a factor for her non-renewal, theschool district proved without any contrary evidence that Settlegoode’s inabilityto write individualized education programs (“IEPs”) was sufficient for it to denyrenewal of her contract. The Ninth Circuit found that the magistrate judgemisapplied the Keyser test. The main evidence that Settlegoode’s IEPs wereinadequate was her immediate supervisor’s evaluations, which were written after

Settlegoode’s complaints. The jury was entitled to disregard this evidence. Even ifthe school district had shown that Settlegoode’s IEPs were inadequate, the district

FREE SPEECH––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

would still be required to show that it would have actually taken the same action,i.e., failed her probation, in the absence of Settlegoode’s exercise of free speech.Little if any evidence was proffered showing this. In such circumstances, theverdict trumps.

With respect to qualified immunity, public officials are immune from liability forSection 1983 damages insofar as their conduct does not violate clearly establishedstatutory or constitutional rights of which a reasonable person would have known.A public employee claiming a violation of First Amendment rights must showthat the speech in question involved a matter of public concern and that theinterests served by allowing the expression outweighed the government’s interestin promoting workplace efficiency and avoiding workplace disruption. (SeePickering v. Bd. Of Educ. (1968) 391 U.S. 563.) The magistrate judge found thatthe first prong had been met but that the school district’s interest in avoidingdisruption outweighed Settlegoode’s interest in expression. The Ninth Circuitdisagreed and found that the school district had proffered very little evidence ofdisruption or actual injury, e.g., loss of control by supervisors, conflicts betweenco-workers, or interference with Settlegoode’s performance. At most the evidencedemonstrated hurt feelings by teachers and staff, and even suggested the contrary.Settlegoode communicated her concerns through internal letters and not throughpublic statements. Her letters had prompted discussion of how to improve theprogram and internal communications. Moreover, the subject on whichSettlegoode spoke was clearly one of public importance. Teachers are in a uniqueposition to speak on such issues. Thus, Settlegoode established that a clearlyestablished constitutional right of hers had been violated. The Ninth Circuit foundthat it was patently unreasonable for the supervisors to conclude thatSettlegoode’s speech was not protected, and thus denied them immunity.

The Ninth Circuit found against the magistrate judge not only under the stringenttest for setting aside a jury verdict as a matter of law – under the governing lawthere can be but one reasonable conclusion as to the verdict – but also under therespective tests set forth in Keyser and Pickering.

Significance. This is one of several Ninth Circuit cases reinforcing the right ofpublic employees to complain to their own management about what they believeto be deficient operations of the employer. Also, hurt feelings or outrage at anemployee’s complaints are not enough to constitute disruption in the workplace.The Court also reinforced the notion that certain types of employees – teachers inthis case – are particularly well suited to complain about the operations of theiremployers and that allowance of such speech is important.

MMBA––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Community College District (September 24, 2003) 27 PERC 133

(PERB)

Decision by community college district to have Sheriff Department employees

provide instruction in a district sponsored and POST-certified Basic Academy

had to be negotiated with teachers union.

The Ventura County Community College District entered into an agreement withthe Ventura County Sheriff’s Department whereby the District would offer aPOST certified Basic Academy. The agreement provided that Sheriff’sDepartment officers were to provide instruction, and that these instructors werenot academic employees of the District, would receive no compensation orbenefits from the District, and were at all times employees of the Sheriff’sDepartment. The agreement also provided that the instructors were deemed toqualify as employees of the District only for the limited purposes of attendanceaccounting standards and computing Full-Time Equivalent Students (FTES), andthat, pursuant to State regulations, the District would provide control of, anddirection to, instructors. The District did not bargain with the teachers unionbefore entering into the agreement. The District claimed that its decision to enterinto the agreement was a fundamental management prerogative and not within thescope of bargaining.

The teachers union filed an unfair practice charge with PERB alleging violation ofthe Educational Employment Relations Act. An Administrative Law Judgecharacterized the agreement as one of subcontracting without the need fornegotiation and dismissed the unfair practice charge. The evidence indicated thatthe District did not reduce the number of regular non-Post certified criminaljustice courses, reduce the number or work hours of academic unit members, orenter into the agreement to save labor costs.

On appeal, PERB reversed the ALJ’s decision. PERB determined that asubcontracting analysis was inapplicable because the District maintained theprimary right to control the instructors, i.e., the instructors were not contractworkers of the District but were employees of both the District and the Sheriff’sDepartment. PERB found that a “transfer of work” analysis was applicablebecause the District was transferring work that would otherwise be performed byunit members to non-unit employees of the District. PERB stated that while thedecision to affiliate with the Sheriff’s Department was a fundamentalmanagement prerogative, the decision whether instructors would be District

MMBA––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

employees or Sheriff’s Department employees was not a fundamentalmanagement prerogative. PERB reiterated that having to negotiate over thedecision does not mean that the District could not have taken a firm positionduring bargaining.

Sacramento Police Officers Assn. v. City of Sacramento (3rd Dist.

2004) 2004 DJDAR 5033

A city’s decision to temporarily hire retirees in response to an abrupt shortage in

the police force is a fundamental managerial policy decision designed to maintain

the existing level of public safety in the community and is not subject to a meet

and confer. Any detriment to unit members should be addressed through the

grievance procedure.

Pursuant to binding arbitration between the City and the police union, unitmembers received significantly enhanced retirement benefits. In anticipation of a“retirement spike” and considering the already tight labor market for lawenforcement officers in the region, the City authorized an additional $500,000 forrecruitment efforts. The City had already been operating with fewer than its fullcomplement of sworn positions. Due to the lag time between increasedrecruitment efforts and the availability of new hires, the City also sought to usepolice officer retirees as part-time, non-career, limited-term employees asauthorized under the City’s civil service rules. The City expressly stated that theuse of retirees would not be used to circumvent the civil service system or laboragreements, and was not to save money, block promotional opportunities,eliminate acting assignments, or create significant adverse impacts on careeremployees. The City Council enacted the plan citing the need to provide a level ofstaffing necessary for the public safety until December 2003, at which time theexpanded recruitment effort would translate into more new-hires.

The police officers union filed a petition with the Superior Court seeking a writ ofmandate directing the City and the union to meet and confer about theimplementation of the policy to use retirees as temporary police officers. TheSuperior Court issued the writ, and held that the policy affected the workingconditions of the unit members because it limited overtime and the opportunity towork in an acting capacity in specialty and supervisory positions. The SuperiorCourt gave no weight to the City’s claim of an exigent need to respond to staffingshortages.

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May 5, 2004

The Court of Appeal reversed in favor of the City. For purposes of its decision,the Court assumed that the retiree proposal represented a change in the status quoregarding the terms and conditions of employment of unit members. Publicagencies have an obligation to meet and confer about any proposed change in thestatus quo regarding the terms and conditions of employment. However, anexception is carved out for fundamental managerial policy decisions that involvematters at the core of management control of the basic direction of the enterprise.(Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d651.) Although there can be a duty to bargain about the details of implementing afundamental managerial decision, the decision itself is not subject to thebargaining process unless the need for unfettered decision-making is lessimportant than the benefit of improved personnel relations from the bargainingprocess.

The Court of Appeal found that the proposal to hire retirees in response to anabrupt shortage in the staffing of the police force, which could not be remediedthrough the ordinary processes of recruitment and hiring and which was beyondthe power of the police officers union to remedy, was a fundamental managerialpolicy decision designed to maintain the existing level of public safety in thecommunity. The decision itself was not subject to the City’s duty to meet andconfer even if it represented a change in status quo of the terms and conditions ofemployment. As the proposal included the principle that nothing in itsimplementation was to affect the terms and conditions of employment of unitmembers, the details of implementation were not subject to the duty to meet andconfer. If individual unit members nonetheless experience detriment as a result ofthe proposal’s implementation, these were properly subject to the existinggrievance process.

EMPLOYMENT STATUS/RETIREMENT BENEFITS––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Salus v. San Diego County Employees Retirement Assn. (4th Dist.

2004) 2004 DJDAR 4415

Sick leave payments made to a group of former county employees at the time of

their retirement were not “final compensation” under the County Employees

Retirement Law of 1937, thus the sick leave payments were not required to be

included in calculating the employees’ retirement benefits.

PERSONNEL RECORDS––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

May 5, 2004

Haggerty v. Superior Court (Guindazola) (4th Dist. 2004) 2004

DJDAR 4832

Disclosure of a police internal investigation report on matter underlying civil

lawsuit itself, pursuant to a Pitchess motion, does not have to be preceded by a

showing that disclosure of witness information would be insufficient to permit

moving party to conduct his or her own discovery.

Luis Guindazola brought a civil action against San Diego County Deputy SheriffWilliam Haggerty, alleging that Haggerty used excessive force against him whilehe was incarcerated in a county jail. After two Pitchess motions and two incamera hearings, the Superior Court ordered the Sheriff’s Department to discloseits internal investigation report of the incident underlying Guindazola’s civilcomplaint. Haggerty filed a writ petition with the Court of Appeals claiming thatthe court abused its discretion in ordering any of the report disclosed and that onlyidentifying information of the witnesses should have been disclosed.

The Court of Appeals granted the writ petition, concluding that the trial courterred in ordering the internal affairs report produced without first redacting thoseportions reflecting the investigating officer’s analysis and conclusions, but alsorejecting Haggerty’s contention that the court abused its discretion in ordering theremainder of the report disclosed. Under Pitchess procedures, a party seekingdiscovery of a peace officer’s personnel records must file a motion describing thetype of records sought, supported by an affidavit showing good cause for thediscovery. If the trial court concludes that good cause has been shown, then thecustodian of records must bring to court all documents potentially relevant to thePitchess motion. The trial court then examines the documents in camera andorders disclosed such information that is relevant to the subject matter involved inthe pending litigation, subject to certain statutory exceptions. Statutorily exemptinformation includes complaints more than five years old, in any criminalproceeding the conclusions of any officer investigating a complaint against anofficer, and facts so remote as to make disclosure of little or no practical benefit.

The Court of Appeal recognized that if this had been a criminal case, the analysisand conclusions in the internal investigation report would be statutorily barredfrom being disclosed. But just because it was a civil case did not mean suchanalysis and conclusions should be automatically disclosed. The trial court muststill make a threshold determination of relevance. In this case, neither Guindazolanor the trial court articulated any possible relevance of the investigating officer’ssubjective analysis and conclusions to the issues raised in Guindazola’s lawsuit.

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May 5, 2004

With respect to the remaining portions of the report, Haggerty argued that as amatter of law a party seeking such records is entitled only to the disclosure of thenames, addresses, and telephone numbers of relevant witnesses and is permittedto obtain a copy of the actual records only after the party’s own discovery effortsare unsuccessful. The Court of Appeal found that none of the authority cited byHaggerty applied this limitation in a context other than where the party seeksprior third party complaint discovery, and that the reasoning of these cases did notapply to an investigation report on the very issue that is the subject of the civilclaim. The limited court opinions to the contrary were only dicta, with littleanalysis. (See, e.g., City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411,1425.) The Court of Appeals also found that such disclosure did not violate publicpolicy. Haggerty claimed that such disclosure would have a chilling effect on alaw enforcement agency’s ability to conduct an uninhibited candid investigation.The Court of Appeals called these concerns speculative, and that if such reportsare disclosed, a trial court retains the authority to uphold a claim of privilegewhen the need to maintain secrecy is greater than the need for disclosure.

personnel litigation update supplement - Cal Cities

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