firm victories

LCW Partner Suzanne Solomon And Associate Abigail Clark Convince The Ninth Circuit That A Probationary Police Officer’s Release Was Lawful.

An LCW team led by Partner Suzanne Solomon and Associate Abigail Clark won an appeal in the U.S. Court of Appeals for the Ninth Circuit on behalf of a city client.

The case arose after a police officer was released on probation. A public outcry had occurred in the wake of the discovery that the officer had been charged with excessive use of force in his prior employment. The police officer sued the city, alleging that his release was an arbitrary and capricious government action that violated his substantive due process rights.

To prevail on a substantive due process claim, the police officer had to show that his government employer took specific action, such as a governmental “blacklist”, that effectively excluded him from his chosen profession of law enforcement. The Ninth Circuit agreed with the District Court that the officer had failed to allege that: he had been blacklisted from the police force; and the city was otherwise responsible for the public outcry over his hiring. The Ninth Circuit affirmed the district court’s denial of leave to amend, concluding that the District Court had acted within its discretion in determining that leave to amend would be futile.

LCW Partner Morin Jacob And Associate Attorney Nathan Jackson Win Dismissal Of Former Fire Chief’s Retaliation Claim.

An LCW team led by Partner Morin Jacob and Associate Nathan Jackson won the dismissal of a lawsuit against a fire district client. In October 2018, a fire district hired its interim fire chief as its fire chief under a two-year employment contract. During this time, the fire district was investigating misconduct allegedly committed by the previous fire chief. The new fire chief assisted with numerous investigations into issues regarding his predecessor.

At some point during his employment, allegations surfaced that the fire chief discriminated against a fire district employee based on age. The fire district then investigated the fire chief. On July 27, 2020, the district informed the chief his employment contract as fire chief would not be renewed and would expire on October 3, 2020.

On November 30, 2020, the now-former fire chief’s attorney sent a demand letter to the fire district’s counsel: accusing the district’s board of retaliation by not renewing the fire chief’s employment contract; demanding three years of salary as damages; and asking the board to rescind its decision to allow the employment contract to expire. The former chief filed a complaint alleging retaliation on February 7, 2021.

On September 2, 2021, the fire district’s attorneys informed the former chief’s attorneys of the district’s intention to file a motion for judgment on the pleadings on the grounds that the chief had not filed a timely governmental claim as required by the Governmental Claims Act (GCA). On September 9, the former chief filed a petition to be relieved of the GCA requirements, arguing that his attorney’s settlement demand letter substantially complied with them.

While his petition to be relieved from the GCA was pending, the former chief amended his retaliation lawsuit to allege that his November 30 demand letter substantially complied with the GCA. The trial court denied the chief’s petition, finding that the settlement demand letter did not substantially comply. The district once again filed a motion to dispose of the complaint for failure to comply with the GCA. This time, the trial court granted the motion without offering the former fire chief an option to amend. The chief appealed to the California Court of Appeal.

The Court of Appeal upheld the trial court’s decision. First, the Court noted that case law has consistently held that: 1) a document must be submitted to the specific address and/or individual that the governmental agency has specified in its claims procedures to be accepted as a claim; and 2) communications addressing the potential settlement of a claim do not meet the requirements of the GCA. The Court found that the former chief’s November 30 demand letter fell under this “settlement” umbrella, and did not meet the GCA requirements. In addition, the chief did not provide the letter to the appropriate individuals at the designated address. Thus, the letter was not a valid claim.

The Court also noted that former chief’s petition to be relieved of the requirements of the GCA simply repeated that the November 30 demand letter substantially complied with the GCA. The Court found the chief failed to offer any evidence why he should be excused to file a late claim. Therefore, the case was dismissed.

LCW Partner James Oldendorph And Associates Aleena Hashmi And Lee Heard Win Dismissal Of Discrimination And Failure To Accommodate Lawsuit.

An LCW team led by Partner James Oldendorph and Associates Aleena Hashmi and Lee Heard won the dismissal of a lawsuit against a city client. A fire inspector had knee replacement surgery in November 2016. On April 21, 2017, he was cleared to work with no work restrictions. His city employer scheduled a Functional Capacity Evaluation (FCE) to determine whether he could safely work.

In April 2017, the inspector returned to light duty at his same salary, seniority, and benefits. In May 2017, the FCE confirmed the inspector did not need any work restrictions or accommodations. The inspector’s treating physician concurred with the FCE.

In June 2017, the inspector returned to work without any restrictions, and signed a Full Duty Work agreement confirming he needed no accommodations, and would tell his supervisor immediately if he: suspected he might need accommodations in the future; or believed any job activity was unsafe or painful; or needed additional leave.

In October 2021, the inspector sued the city alleging age and disability discrimination and failure to accommodate. The inspector alleged that his medical leave was extended in 2017 because no light duty work was available while he was awaiting the results of the FCE, and that his workload doubled when he returned. He also alleged that throughout his tenure his coworkers repeatedly asked him when he was going to retire. The inspector claimed these actions led to his constructive discharge.

The Court granted the city’s Motion for Summary Judgment dismissing all of the inspector’s claims. The Court found no substantial evidence of any discriminatory animus or any adverse employment actions.

First, the Court found that the inspector’s failure to accommodate claim was time-barred by the threeyear statute of limitations. The Court also rejected the inspector’s claims that the City failed to engage in the interactive process and failed to accommodate him by reducing his double workload. The inspector admitted that due to technical computer issues he was not expected to, and did not actually complete, a double workload. Nor did the inspector ever complain about it. The inspector also failed to identify anyone to whom he made accommodation requests, or that he ever asked his supervisor for an accommodation as required by his Full Duty Work agreement.

Second, the Court noted that the co-worker comments and questions about retirement age are commonplace. The inspector admitted there was a similar dynamic at the City, and that his coworkers frequently discussed how retirement was a perk. The Court further noted that none of the alleged comments amounted to adverse actions in and of themselves, nor did they lead to or relate to any City-imposed adverse employment actions.

Finally, the inspector also failed to prove that his working conditions were so intolerable, aggravated, or severe to force a reasonable person to retire.

LCW Partner Geoff Sheldon, Senior Counsel Dave Urban, And Associate Daniel Seitz Won The Early Dismissal Of A Constitutional Political Speech Lawsuit.

An LCW team led by Partner Geoff Sheldon, Senior Counsel Dave Urban, and Associate Daniel Seitz won the dismissal of a lawsuit against the County of Los Angeles. When a lawsuit is filed, the entity being sued has options. One option is for the entity to answer the complaint to tell its side of the story and to litigate the case. Another option is to file a motion to dismiss, which asserts that even if all the allegations in the lawsuit are true, there is still no cause of action. The latter option is very challenging. Even if a court grants the motion, the court usually gives the person suing an opportunity to try again to file a successful lawsuit.

The LCW team took the more challenging option and won. Here, County employee Michael Craine joined Local 119 of the American Federation Of State, County, And Municipal Employees Council in 1999. Craine later decided to withdraw from the union. He sent a letter to Local 119 on January 19, 2022. Craine’s letter withdrew his authorization for the union to deduct his dues from his paycheck.

After Local 119 refused to process his request until a later time, Craine filed a lawsuit. Craine alleged that taking the dues deductions without his permission violated his constitutional right to decide whether to fund political speech. Upon receiving the lawsuit, Local 119 cancelled Craine’s dues deduction and mailed Craine a check reimbursing him for dues deducted after January 19, 2019, along with interest on that amount.

Geoff, Dave, and Daniel filed a motion to dismiss alleging that Craine’s lawsuit was moot. To proceed in federal court, Craine needed to prove: he was injured because of another’s conduct, there was a causal connection between his injury and the conduct, and his injury could be redressed by a court.

Here, Local 119 stopped its dues deductions once Craine sued, refunded the dues it deducted, and provided him interest on the dues deductions. As a result, Craine had no ongoing injury and a moot lawsuit. Once the LCW legal team learned these facts they immediately moved for dismissal. The judge then granted the dismissal without leave to amend. This helped the County avoid time-consuming and expensive discovery and trial.

Join us at LCW’s 2023 In-Person Public Sector Employment Law Conference!

We're thrilled to announce that registration is now open for the 24th Annual LCW Conference taking place March 16 - 17, 2023. After a couple of years of Zoom meetings and virtual hangouts, we're looking forward to seeing you in-person for the 2023 LCW Conference in San Diego!

The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.

When: March 16 - 17, 2023

Where: Hilton San Diego

1 Park Boulevard San Diego, CA 92101

2023 LCW Conference attendees will gain access to:

• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers.

• MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered!

• Fun Activities. It wouldn't be the LCW Conference without some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!

REGISTER HERE.