Government Liability Update

Public Official Not Entitled to Qualified Immunity for Allegedly Retaliating against Employee for Employee's Subpoenaed Deposition Testimony in Civil Rights Lawsuit

In Karl v. Mountlake Terrace, published May 8, 2012, the 9th Circuit held that a public employee's subpoenaed deposition testimony, given in a 42 U.S.C. section 1983 case alleging the violation of a fellow employee's civil rights, is speech on a matter of public concern, given in the employee's capacity as a private citizen rather than as part of her job duties.  Therefore, under the analyses set forth in Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) and Connick v. Myers, 461 U.S. 138, 140 (1983), the speech is protected by the First Amendment; and the employee has a cause of action under section 1983 if she suffers employment retaliation because of that speech.  The court further held that even though there was no circuit precedent in 2008 (when the retaliation is alleged to have occurred) holding that the speech was protected, a reasonable official in the defendant assistant police chief's position would have known the speech was protected by the First Amendment.  The assistant chief was therefore not entitled to qualified immunity for the alleged retaliation.

School District's Supervising Managers May Be Held Liable for Retaliation under Whistleblower Statute, But Managing Employees May Not Seek Punitive Damages under Statute

 

[Note:  By request, I've edited the summary of this case from that initially posted, to clarify the interaction of the statutes involved.]

In Hartnett v. Crosier, published April 26, 2012, the Fourth District Court of Appeal, Division 1, agreed with the Third District Court of Appeal's decision in Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, and held that a school district's management employees may be held liable under Education Code section 44113(a) when they act in a supervisory capacity.  

Section 44113(a) bars an “employee” from using his or her power to interfere with any person’s right to disclose to an official agent evidence of improper governmental activity, or threats to employee or public safety.  Section 44114(c) states that a “person” who engages in retaliation against a “public school employee” may be liable for punitive damages.
 
Section 44112(a) defines “employee” under the statute as a “public school employee” as defined in Government Code section 3540.1(j). Subdivision (j) excludes “management employees” from that definition.  But it does not exclude “supervisory employees,” which under Government Code section 3540.1(m) means an employee who has the power to hire, transfer, suspend, layoff, recall, discipline, etc. other employees, or the responsibility to assign work to or direct them, or to adjust their grievances, or to recommend these actions.
 
The court agreed with a previous court’s interpretation of these statutes:  If a management employee is also a supervisory employee, she is an “employee” subject to the Reporting by School Employees of Improper Governmental Activities Act.  But a plaintiff who is a management employee is not entitled to the punitive damages provided by Education Code section 44114(c).

Rulings in State Court FEHA Action and City Administrative Proceeding Preclude Plaintiff's Federal Suit for Retaliatory Termination

In White v. City of Pasadena, published January 17, 2012, the Ninth Circuit affirmed dismissal of a former police officer's suit against her former employer for termination that was allegedly in retaliation for her disability-discrimination litigation against the employer.  The plaintiff initially filed a FEHA suit alleging that her employer discriminated against her based on perceived disability.  The jury found against her disability-discrimination claim, and that decision was affirmed on appeal.  Later, the plaintiff was terminated for allegedly lying about a purported suicide attempt.  She engaged in mandatory administrative arbitration concerning the termination.  The arbitrator rendered an opinion that the termination was improper, but the city manager -- the final decision maker -- rejected this opinion and upheld the termination.  The plaintiff filed an administrative mandamus writ petition in state court challenging that decision.  The court upheld it.  The plaintiff also filed a lawsuit alleging that she was terminated in retaliation for her discrimination lawsuit, in violation of her First and Fourteenth Amendment rights.  She sought damages from the employer under 42 USC section 1983 and under various state law causes of action.  The employer removed the case to federal court, where it was dismissed.

The court held that state court decisions have the same claim-preclusive and issue-preclusive effect on federal litigation as they would have on state court litigation.  The decision on the state court FEHA claim precluded her allegations in the federal lawsuit that the employer discriminated against her based on her perceived disability.  And the administrative decision on her termination, which met the California standards for claim preclusion, barred her claim that the employer had an insufficient or pretextual reason for her termination.

A Police Chief Is "Removed" from Office under POBRA Even If Still Paid

In Robinson v. City of Chowchilla, published December 23, 2011, the Fifth District Court of Appeal upheld a trial court decision granting a police chief a writ of mandate ordering his reinstatement on the ground that the chief was removed from office without giving him the notice required under the Public Safety Officers' Procedural Bill of Rights Act.  Among other arguments, the defendant argued that it had not "removed" the chief from office, within the meaning of the act, before the date his contract expired, even though it directed him to remove his belongings from office and leave the department, and then appointed an acting chief in his place.  The defendant contended that because it continued to pay the chief his compensation until the end of his term, it did not "remove" him.  The appellate court ruled that interpreting the statute that way would encourage cities to evade POBRA's procedural protections simply by continuing to pay police chiefs after putting them out of office.  

Although False Claims Action Cannot Be Brought against Public Agency, Agency Is Subject to Whistleblower Actions under Act

In Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, the California Supreme Court held that a public agency could not be a defendant in an action under the California False Claims Act (Government Code section 12650 et seq.) because it was not a "person" subject to that statute.  In so ruling, the court disapproved LeVine v. Weis (1998) 68 Cal.App.4th 758 and LeVine v. Weis (2001) 90 Cal.App.4th 201, in which the Second District Court of Appeal, Division 6 ruled that public entities and agencies could be sued under the Whistleblower provisions of the Act.

In Cordero-Sacks v. Hous. Auth. of L.A., however, published November 17, 2011, DIvision 8 of the Second District Court of Appeal ruled that while a public agency is not a "person" under the False Claims Act, it is an "employer" under the Act; and it is therefore subject to the whistleblower provisions of the Act.  The Cordero-Sacks court concluded that although Wells disapproved the LeVine cases, Wells did not discuss whether a governmental agency was an “employer” subject to liability for retaliatory discharge.

"Public Concern" and Pickering Tests Apply to Public Employee First Amendment Petition Claims

In Bureau of Durnyea v. Guarniari, published June 20, 2011, the U.S. Supreme Court resolved a split between the Third Circuit and every other circuit to have considered the issue by ruling that the same "public concern" test and Pickering v. Board of Education balancing test that apply to First Amendment retaliation claims arising out of free-speech protection apply to allegations that retaliation for pursuing employee grievances violates the right to petition government for redress of grievances.  If the grievance involves a purely private concern, he has no First Amendment retaliation claim.  If the grievance is a petition as a private citizen on a matter of public concern, then the employee's First Amendment interests are balanced against the employer's countervailing interest in the effective and efficient management of its internal affairs.  If the balance favors the employer, the First Amendment claim fails.

School's Firing of Teacher for Posting Explicit Ad on Craigslist is Supported by Substantial Evidence

In San Diego Unified School Dist. v. Commission on Professional Competence, published May 3, 2011, the Fourth District Court of Appeal, Division 1, ruled that a trial court erred in upholding a commission ruling that a school district improperly fired a teacher who posted an explicit ad (including nude photos of himself) on Craigslist.  The respondent Commission ruled that no substantial evidence supported the district's decision that the teacher showed evident unfitness for service and immoral conduct as defined by the Education Code.  The appellate court concluded that no substantial evidence supported the Commission's ruling, because the ad, a student's and parent's discovery of it, and the administration's loss of confidence in the teacher as a result, established evident unfitness and immoral conduct, both grounds for dismissal.  The court ruled that the trial court should have granted the district's petition for administrative mandate.

Defendant Awarded Fees under Federal Civil Rights Statute May Recover only Fees Incurred Because of Frivolous Claims

In Harris v. Maricopa County Superior Court, published January 20, 2011, the Ninth Circuit reversed an award of attorney fees to a prevailing defendant under 42 U.S.C. section 1988 and Arizona state law.  The court held that the means of calculating a fee award are reviewed de novo. Defendants are entitled to fee awards under section 1988 only if the plaintiff's claims are frivolous, unreasonable, and without foundation; and only fees attributable to the frivolous claims are recoverable.  In this case, in which the court held some of the plaintiff's claims frivolous and others reasonable, the district court apportioned the fees defendants incurred for all claims evenly among the claims, and awarded those apportioned to the frivolous claims.  The Ninth Circuit majority held that doing so was error.  The court may award the defendant only the fees that defendants would not have incurred but for the frivolous claims.  The defendant has the burden of proving such fees.  If the defendant fails to carry the burden as to a particular fee, the defendant does not receive that fee.

The dissent opines that this burden of proof makes the already hard to obtain award of defense fees under 42 U.S.C. section 1988 impermissibly difficult.  The dissenting judge argues that the standard of review should be abuse of discretion.  He also points out that the majority's position conflicts with that of other circuits.

Public School Employees May Make Claims under Minimum Wage Law, and Sue for Breach of Contract, but May Not Sue for Quantum Meruit

In Sheppard v. North Orange County Regional Occupational Program, published December 23, 2010, the 4th District Court of Appeal, Division 3, ruled that the minimum wage law imposed by the Industrial Welfare Commission‟s (IWC) wage order No. 4-2001 (title 8, section 11040 of the California Code of Regulations) applies to California public school district employees, as employees of a subdivision of the state.  The court further ruled that although public employment is held by statute, the contract clause of the California Constitution (article I, section 9) protects a public employee's rights to payment of salary that has been earned.  A public employee may therefore have a breach of contract claim for wages required by the minimum wage law but not paid.  (The court did not decide whether the plaintiff in Sheppard had successfully pleaded such a case.) 

But the court agreed with the trial court that the plaintiff could not assert a quantum meruit cause of action for the wages.  Government Code section 815 bars common-law causes of action against public entities.  Quantum meruit is a common-law cause of action.

When Citizen Makes Credible Threats of Violence Toward City Officials, Free Speech Does Not Bar Injunctive Relief under Workplace Violence Safety Act

In City of San Jose v. Garbett, published November 24, 2010, the Sixth District Court of Appeal concluded that the Workplace Violence Safety Act (Code of Civil Procedure section 527.8) permitted a city to seek injunctions limiting a citizen's access to the mayor and city council after the citizen makes credible threats of violence.  Although the Act states that it does not permit a court to issue an injunction that bars constitutionally-protected speech, the court concluded that if the elements of  section 527.8 are met by a credible threat of violence toward an employee, the speech is not constitutionally protected and may be enjoined.