DISCRIMINATION, HARASSMENT AND RETALIATION

Transcription

1 DISCRIMINATION, HARASSMENT AND RETALIATION POLICY MAKER LIABILITY EXCEPTION TO 1 ST AMENDMENT RETALIATION NOT APPLICABLE TO SHERIFF S DEPARTMENT LIEUTENANT IN CONTRACT CITY POLICE CHIEF ROLE The Orange County Sheriff s Department (OCSD) provided contract police services to the City of San Clemente. Plaintiff Hunt, one of 60 lieutenants on the OCSD force, was assigned as the San Clemente chief, where he oversaw some 56 officers and participated in local interactions with the city council and citizenry. However, he reported to an intermediate supervisor (not directly to Defendant/Sheriff Michael Corona) and had largely the operational authority of an administrator rather than a policy-making role. Hunt ran against Corona in the 2006 election for Orange County sheriff. Corona won, and shortly thereafter had Hunt investigated and ultimately demoted three ranks for the allegedly disloyal and disruptive statements Hunt had made during the campaign. Hunt sued for violation of 42 U.S.C. 1983, alleging improper retaliation against him based on an exercise of his 1 st Amendment rights. The Ninth Circuit reversed the lower court, finding that Hunt did not fall within the policy-maker liability exception to the 1 st Amendment. Hunt s position was not one for which political loyalty was an appropriate requirement, and thus his discipline based on his political speech constituted retaliation for protected speech. (Note: despite the retaliation ruling, the trial court s ruling in favor of Corona based on qualified immunity was affirmed.) Hunt v. County of Orange (9th Cir. 2012) 672 F.3d 606. SIMILARLY-SITUATED CLASS OF PLAINTIFFS MAY PIGGYBACK ON ONE PLAINTIFF S TIMELY DFEH COMPLAINT OF DISCRIMINATION TO SATISFY THE REQUIREMENT TO EXHAUST ADMINISTRATIVE REMEDIES Plaintiffs were retired Orange County employees who filed a lawsuit against the County (on behalf of themselves and several thousand other similarly-situated retirees) challenging the County s changes to its retiree medical benefit program. Specifically, the County had negotiated to (1) split the current employees and retirees into two pools for premium calculation, (2) reduce the monthly amount of money paid to retirees to be used toward medical benefit premiums, and (3) to reduce the overall retiree medical payment by half once the retiree reached the Medicare eligibility age. The retirees sued, claiming breach of contract, denial of due process and discrimination against the retirees based on age in violation of the California Fair Employment and Housing Act (FEHA). The trial court dismissed the retirees age discrimination for failure to exhaust administrative remedies because only one plaintiff James McConnell had filed a complaint with the Department of Fair Employment and Housing and obtained a right to sue letter. The Ninth Circuit reversed, finding that under federal law, so long as one plaintiff timely files an administrative complaint, a class of similarly-situated plaintiffs may piggyback on that complaint, thereby satisfying the exhaustion requirement. Harris v. County of Orange (9th Cir. 2012) 682 F.3d BB&K 2012 ANNUAL LABOR & EMPLOYMENT LAW UPDATE 1

2 STATISTICAL EVIDENCE OF DISPARATE TREATMENT CAN SUPPORT PRIMA FACIE INFERENCE OF DISCRIMINATION EVEN WHERE IT DOES NOT TAKE INTO ACCOUNT THE EMPLOYER S PROFFERED NON-DISCRIMINATORY REASONS FOR THE ADVERSE ACTION TAKEN In response to dramatically falling advertising revenues, CBS/KPIX-TV (KPIX) in San Francisco was forced to reduce its annual budget by 10% in the first quarter of KPIX laid off five members of its on air news team as part of a reduction in force to meet the budget cut. Plaintiffs Schechner (age 66) and Lobertini (age 48) were among the five laid off (along with three others aged 57, 56 and 51). Both were experienced, award-winning reporters, and KPIX did not allege that their performance had any bearing on their release. Plaintiffs sued based on age and gender discrimination. The trial court granted summary judgment for KPIX, finding that the statistical analysis plaintiffs provided failed to account for KPIX s legitimate nondiscriminatory reasons for discharge, and thus could not show a stark pattern of discrimination needed to establish a prima facie case of discrimination. The Ninth Circuit disagreed, finding that statistical evidence need not fail at the outset simply because it does not address the employer s alleged non-discriminatory reasons, although it will (in many cases) need to address variables other than age to give rise to an inference of discrimination. In this case, however, because KPIX had proffered legitimate non-discriminatory reasons for discharge (keeping news anchors intact so that cuts would be invisible to viewers, and then selecting layoff targets based on their dates of contract expiration), and plaintiffs failed to show the discharges were a pretext, the Ninth Circuit affirmed the summary judgment. Schechner v. KPIX-TV (9th Cir. 2012) 686 F.3d CALIFORNIA POLICE OFFICER REPORTS OF ALLEGED INTERNAL CORRUPTION ARE PART OF OFFICIAL DUTIES AND THUS NOT CONSTITUTIONALLY-PROTECTED SPEECH ON WHICH A RETALIATION CLAIM MAY BE BASED Detective Dahlia of the Burbank Police Department allegedly observed and was concerned about abusive interrogation techniques used by his colleagues with suspects. These techniques were being investigated by the Department, and some of the colleagues allegedly threatened and intimidated Dahlia to prevent him from speaking candidly with the internal affairs investigators. Dahlia reported the alleged threats to his union president, who then reported them to the city manager. During an investigation conducted by the LA Sheriff s Department, Dahlia disclosed the alleged unlawful conduct engaged in by his colleagues. Shortly thereafter, the police chief placed Dahlia on paid administrative leave, and Dahlia sued both the city and the colleagues involved in federal court for violations of 42 U.S.C He alleged retaliation for 1st Amendment protected speech, various whistleblower theories, and both intentional and negligent infliction of emotional distress. The District Court granted defendants Rule 12(b)(6) motions to dismiss, finding that (1) his speech was made pursuant to official duties and thus was not constitutionally-protected, and (2) that placement on paid administrative leave is not an adverse employment action. Based on Ninth Circuit precedent (which this panel was openly hostile to), the appellate court affirmed the dismissal because, as a matter of law, California police officers are required (as part of their official duties) to disclosed information regarding acts of corruption. BB&K 2012 ANNUAL LABOR & EMPLOYMENT LAW UPDATE 2

3 As such, Dahlia s disclosures were pursuant to official duties and not protected speech. The court further concluded, however, that in some circumstances, placement on paid administrative leave can constitute adverse employment action if that action is reasonably likely to deter employees from engaging in protected activity. Dahlia v. Rodriguez (9th Cir. 2012) 689 F.3d EMPLOYEE ALLOWED TO PROCEED WITH CLAIMS OF HARASSMENT BECAUSE AGGREGATE OF EVIDENCE MIGHT ESTABLISH SUFFICIENT FACTUAL SUPPORT Mustafa Rehmani, a Muslim born in Pakistan, worked as a system test engineer for Ericsson, Inc. from February 2007 until November 13, 2009, the day that he was terminated. During his employment, he had coworkers from at least 12 different countries. Rehmani filed a lawsuit claiming that he was harassed because of his Pakistani nationality and Muslim faith during his employment by three of his coworkers who were from India, and that his supervisor failed to take any remedial action when he reported the conduct. Specifically, Rehmani complained that the Indian coworkers were frequently rude, dismissive and hostile toward him, as evidenced by their refusal to help him with projects, a comment about the need for India to bomb Pakistani terrorists, a question as to whether Rehmani would blow up a coworker if the coworker did not assist him, and a comment that Rehmani did not attend a prank birthday party that was given for him at work because he was out of the office celebrating 9/11 and planning terrorist attacks. Ericsson filed a motion for summary judgment, arguing that the comments were isolated, were not based on national origin or religion, and were neither severe nor pervasive. Ericsson also claimed that it appropriately responded to Rehmani s complaints, in that the employees who allegedly made the comments were not managers, Rehmani never asserted "harassment" or "discrimination" and never claimed that his alleged mistreatment was due to his being Pakistani or Muslim. Further, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9/11 prank. The trial court granted the motion as to Rehmani s harassment claims based on national origin and religion, and Rehmani appealed. The court of appeal reversed the trial court s decision, and reinstated the claims. The appellate court explained that dismissal of the claims was not appropriate unless Ericsson could establish that Rehmani was not subjected to hostile work environment, and that Ericsson responded to Rehmani s complaints about the conduct with appropriate corrective action. While acknowledging that Rehmani's case may appear weak, the appellate court concluded that it could not conclude as a matter of law that the evidence Rehmani wishes to adduce was insufficient in the aggregate to establish claims for harassment based on national origin or religion. The court explained that Rehmani should be allowed to present this evidence to a trier of fact, who could decide either that the claims had merit, or alternatively could rule against Rehmani either because his interpersonal difficulties were not related to Indian employee's sentiments against non-indian employees or because his complaints were insufficient to trigger an investigation by Ericsson under the Fair Employment and Housing Act. Rehmani v. Superior Court (2012) 204 Cal.App.4th 945. BB&K 2012 ANNUAL LABOR & EMPLOYMENT LAW UPDATE 3

4 PUBLIC SCHOOL DISTRICT MAY BE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF ADMINISTRATORS IN HIRING, SUPERVISING AND RETAINING A SEXUALLY ABUSIVE EMPLOYEE A former student sued his public high school guidance counselor and the school district for damages arising out of sexual harassment, abuse and molestation by the counselor when he was fifteen years old. He alleged that the school district knew or should have known that the counselor would commit wrongful sexual acts with minors based on her past sexual abuse of minors and her propensity and disposition to engage in such abuse. Therefore, he alleged the school district was liable for negligent hiring, retention and supervision of the counselor. The school district demurred to the complaint, alleging that there was no statutory authority to hold a public entity liable for negligent supervision, hiring or retention of employees. The trial court sustained the demurrer, dismissing the school district as a party, and the Court of Appeal affirmed. The California Supreme Court reversed. The Court noted that the Government Code provides that a public entity is vicariously liable for any injury which its employee causes to the same extent as a private employer. Given the special relationship between public school personnel and students, the Court held that the school district s administrative and supervisory employees have a duty of reasonable care to protect students from foreseeable dangers, including from foreseeable injury at the hands of third parties acting negligently or intentionally. Therefore, a public school district may be vicariously liable under the Government Code for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student. C.A., a Minor, etc. v. William S. Hart Union High School District (2012) 53 Cal.4th 861. AN EMPLOYEE MAY NOT SUE FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY BASED UPON AN EMPLOYER S REFUSAL TO RENEW AN EMPLOYMENT CONTRACT, BUT MAY SUE FOR RETALIATION. Touchstone Television Productions hired actress Nicollette Sheridan to appear in the first season of the television series Desperate Housewives. The agreement was for the series initial season but it gave Touchstone the exclusive option to renew her services on an annual basis for up to an additional six seasons. Touchstone exercised its option and renewed its agreement with Sheridan for seasons two, three, four and five. Sheridan alleges that during filming in season five, the creator, Marc Cherry, hit her and that she complained to Touchstone about the alleged battery. Approximately five months later, Touchstone informed Sheridan that it decided not to exercise its option for season six. Thereafter, she appeared in three more episodes and engaged in publicity for the series. She then filed suit, claiming she was wrongfully terminated in violation of public policy. The jury deadlocked and Touchstone moved for a directed verdict, claiming she was not terminated; rather, Touchstone had simply decided not to renew her contract. The trial court denied the motion and the Court of Appeal reversed. The Court of Appeal held that Sheridan could not sue for wrongful termination in violation of public policy based upon Touchstone s refusal to renew her employment contract because she was not fired, discharged or terminated. Furthermore, no cause of action exists for the tortious nonrenewal of an employment contract in violation of public policy. However, Sheridan could amend her complaint to allege a retaliation cause of action under Labor Code section 6310, BB&K 2012 ANNUAL LABOR & EMPLOYMENT LAW UPDATE 4

5 which permits an action for damages if the employee is, among other things, discriminated against because of complaints about unsafe work conditions. The Court of Appeal therefore issued a writ of mandate compelling the superior court to grant Touchstone s motion for directed verdict and to permit Sheridan to file an amended complaint with the retaliation cause of action. Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676. BB&K 2012 ANNUAL LABOR & EMPLOYMENT LAW UPDATE 5