California Public Employee Relations...since 1969
Institute for Research on Labor and Employment, UC Berkeley

California's number one resource for employer/employee relations

CPER Online Table of Cases

CPER Online 202 (June 2011) thru CPER Online 209 (March 2013)

Key to CPER Journal sections: ARB=Arbitration, DIS=Discrimination, GEN=General, HE=Higher Education, LG=Local Government, PS=Public Schools, SE=State Employment, TC=Trial Court Employees


Opinion by AG Kamala Harris, Ops.Cal.Atty.Gen. No. 11-702 [6-1-12]  2012 DJDAR 7787/CPER 207, LG

Because wages, and the related subject pensions, are within the scope of bargaining under the MMBA, the city had an obligation to bargain before placing Measure D on the ballot. In addition, the provision that requires a vote of the electorate to amend or repeal the ordinances enacting the measure effectively removed the subject from future bargaining.


Opinion by AG Kamala Harris, Ops.Cal.Atty.Gen No. 12-203 [12-14-12] 2012 DJDAR 16883/CPER 209, GEN

Protect Our Benefits, an organization representing retired employees of the City and County of San Francisco, may sue the city directly without requesting the attorney general’s permission. One of POB’s claims challenges the substance of charter amendments that limit supplemental cost-of-living adjustments. The other allegation relates to the failure to obtain an actuarial report required by the charter, not state law, before amending the charter. Neither legal ground was appropriate for a quo warranto action.


Alameda County Management Employees Assn. v. Superior Court of Alameda County (2011) 195 Cal.App.4th 325, 2011 Cal.App. LEXIS 563/CPER 202, TC

The court employer should have met and conferred with the association before deciding on a course of action. If the rights of one union’s members are affected by proposed provisions in a second union’s contract, the court employer must meet and confer with the first union before making a decision to agree with the second union. Individual employees who had been laid off or demoted were not entitled to pre-layoff or pre-demotion hearings even though they claimed the actions taken against them were disciplinary.


Alamo v. Practice Management Information Corp. [2012] 210 Cal.App.4th 95, 2012 Cal.App. LEXIS 1086/CPER 208, DIS

A plaintiff alleging unlawful discrimination under the Fair Employment and Housing Act need only prove that her protected status was a “motivating reason” for her discharge to prevail, not that it was the “but for” cause.


Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (9th Cir. 2011) 648 F.3d 986, 2011 U.S.App. LEXIS 16801/CPER 203, LG

Even if a civil service commission has no jurisdiction to hear a challenge to a disciplinary suspension after an officer retires, due process requires that the public employer provide a post-suspension hearing to an officer who did not receive a pre-disciplinary hearing.


Baker v. Mulholland Security and Patrol, Inc. (2012) 204 Cal.App.4th 776, 2012 Cal.App. LEXIS 356/CPER 206, DIS

A defendant who prevails in a case brought under the Fair Employment and Housing Act may not recover its expert witness fees from the plaintiff unless the plaintiff’s claim is frivolous. The same standard applicable to the recovery of attorney’s fees also applies to expert witness fees.


Barber v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 638, 2012 Cal.App. LEXIS 134/CPER 205, SE

A former parole agent had no right under the Public Safety Officers Procedural Bill of Rights Act to see his personnel and internal affairs records. The lack of an employment relationship rendered the officer without Government Code Sec. 3306.5 rights even though the State Personnel Board hearing on his termination was still pending.


Bardzik v. County of Orange (9th Cir. 2011) 635 F.3d. 1138, 2011 U.S. App. LEXIS 6242/CPER 202, GEN

An elected official who retaliated against an employee for exercising his right to free speech was entitled to qualified immunity under the “policymaker exception.” The county sheriff could not be held liable under 42 USC Sec.1983 for retaliating against the reserve division commander after he openly supported the sheriff’s opponent in an election. The sheriff was not, however, immune from liability for retaliating against the employee after he was removed from the reserve division commander position.


Basurto v. Imperial Irrigation Dist. [2012] 211 Cal.App.4th 866, 2012 Cal.App. LEXIS 1240/CPER 209, DIS

An employee’s claims of age and race discrimination and wrongful termination were barred by a prior adverse administrative decision that he was terminated for cause. The employee had the opportunity to raise his claims at the administrative hearing and failed to do sot. The employee was afforded due process at the administrative hearing, and his claim of bias was unsubstantiated.


Bjorndal v. Superior Court of Sonoma County [2012] 211 Cal.App.4th 1100, 2012 Cal. App. LEXIS 1252/CPER 209, SE

Initiating a retaliation lawsuit does not toll the deadline for filing an administrative whistleblower claim with the State Personnel Board. The employee had sued in both state and federal courts under various statutes before filing an SPB complaint and amending his state court action to seek relief under the California Whistleblower Protection Act.


Boliou v. Stockton Unified School Dist. [2012] 207 Cal.App.4th 170, 2012 Cal.App. LEXIS 739 , 2012 DJDAR 8743/CPER 207, PS

The Third Circuit Court of Appeal held that the Commission on Professional Competence erred when it failed to issue a determination in accordance with Education Code requirements after the school board rescinded charges against a teacher on the eve of the hearing. The commission should have ruled that the teacher should not have been dismissed and should have awarded him attorney’s fees and costs incurred during 18 months of litigation, rather than granting the district’s motion to dismiss the charges.


Borough of Duryea v. Guarnieri (6-20-11) No. 09-1476, ___U.S.___, 131 S.Ct. 2488, 2011 U.S. LEXIS 4564/CPER 203, GEN

A government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public concern. These tests were originally formulated to determine whether a government employer violated a public employee’s rights under the First Amendment’s Speech Clause.


Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 2011 Cal.App. LEXIS 1309/CPER 204, DIS

A single incident of harassment directed at the plaintiff was not sufficient to violate the California Fair Employment and Housing Act’s prohibition of sexual harassment in the workplace. While the plaintiff observed and learned about other incidents of sexual conduct, they did not constitute severe or pervasive sexual harassment.


Brown v. Chiang (2011) 198 Cal.App.4th 1203, 2011 Cal.App. LEXIS 1141/CPER 203, SE

Employees of constitutional officers were included within the legislature’s approval of the governor’s furlough program. Application of the executive order to constitutional officers did not violate the California Constitution’s structure of divided constitutional authority or interfere with their statutory rights.


Brown v. Superior Court (2011) 199 Cal.App.4th 971, 2011 Cal.App. LEXIS 1259/CPER 204, SE

The near impossibility of taking off furlough days in the understaffed 24-hour correctional system did not invalidate the furlough program as applied to correctional officers. While there was the possibility that a minimum wage claim might be brought for an officer who is unable to use all his or her furlough credits before discharge or retirement, the court could not rule on such claims until the termination of employment caused an actual loss of compensation. The furlough program also did not violate Labor Code Secs. 223 or 212.


California Assn. of Professional Scientists v. Department of Finance (2011) 195 Cal.App.4th 1228, 2011 Cal. App. LEXIS 646/CPER 202, SE

While Gov. Code Sec. 19826 may require the Department of Personnel Administration to consider the principle of “like pay for like work” when setting supervisors’ salaries, it does not require that the appropriate salaries actually be paid in the absence of sufficient legislative appropriations. The finance department has no duty to seek appropriations to fund salary increases that DPA finds are necessary to comply with Sec. 19826.


California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Brown (2011) 195 Cal.App.4th 119, 2011 Cal.App. LEXIS 538/CPER 202, SE

The governor could not issue an executive order directing the Department of Personnel Administration to adopt a plan to implement furloughs of most state employees for two days a month, “regardless of funding source.” The court forbid furloughs for State Compensation Insurance Fund attorneys on the ground that the Insurance Code prohibits the governor from imposing staff cutbacks at the agency.


California Statewide Law Enforcement Assn. v. California Department of Personnel Administration (2011) 192 Cal.App.4th 1, 2011 Cal.App. LEXIS 84/CPER 202, ARB

The parties may have agreed that a richer pension formula would apply retroactively, but an arbitrator’s award enforcing that agreement violated the public policy embodied in the Dills Act. Because the legislation ratifying the agreement to grant the officers’ safety retirement benefits was silent about whether the benefit would apply to prior service and the fiscal analysis did not include it, the retroactivity portion of the agreement cannot be enforced unless and until the legislature approves it.


Californians Aware v. Joint Labor/Management Benefits Committee (2011) 200 Cal.App.4th 972, 2011 Cal.App. LEXIS 1412/CPER 204, GEN

The committee was not a legislative body subject to the Brown Act because it “was created as part of, and for the purpose of furthering, the collective bargaining process under EERA.” EERA provides that a public school employer “or such representatives as it may designate…shall meet and negotiate,” and district members on the committee are clearly representatives.


California Department of Human Resources v. Service Employees International Union, Loc. 1000 (2012) 209 Cal.App.4th 1420, 2012 Cal.App. LEXIS 1070/CPER 208, SE

An arbitrator’s award of higher salaries — based on his finding that the parties had agreed to implement both sets of raises — violated public policy.


Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 2011 Cal.App. LEXIS 262/CPER 202, PS

Neither Education Code Sec. 45307 nor the Los Angeles Unified School District Personnel Commission rule 904(P) alter well-established law requiring an employer to affirmatively prove failure to mitigate damages as an affirmative defense. The defendants failed to meet their burden and back pay was properly awarded to the plaintiff.


Cate v. California State Personnel Board (Norton) (2012) 204 Cal.App.4th 270, 2012 Cal.App. LEXIS 284/CPER 206, SE

The State Personnel Board abused its discretion by reducing a correctional officer’s punishment from discharge to a 30-day suspension. No deference was given to the witness credibility findings of the administrative law judge, since she had not presided at the hearing.


City of Los Angeles v. Superior Court (2011) 193 Cal.App.4th 1159, 2011 Cal.App. LEXIS 354, rev. granted/CPER 202, LG

The Supreme Court granted review of the decision that an agreement to arbitrate whether furloughs violated workweek and salary provisions of a collective bargaining agreement would be an improper delegation of the council’s policymaking powers.


City of San Diego v. Haas [2012] 207 Cal.App.4th 472, 2012 Cal.App. LEXIS 763/CPER 207, LG

City employees hired between the time a collective bargaining agreement was signed and the time the city enacted a corresponding ordinance did not gain vested rights to retirement benefits eliminated in the agreement. The San Diego City Employees Retirement System’s statements to the contrary did not create contractual rights.


City of Stockton v. Associated Employees of the City of Stockton [8-6-12] U.S. Bankruptcy Ct., E.Dist.Cal. 232118-C-9/CPER 207, LG

Bankruptcy court refused to protect the health benefits of retirees of the City of Stockton. In August, the court ruled that it had no power to interfere with the property or revenues of the city. The court acknowledged the unfortunate plight of retirees who were dependent on city-sponsored benefits, but explained that bankruptcy provisions of the U.S. Constitution trump the clause that normally bars impairment of contracts.


Coleman v. Court of Appeals of Maryland (3-20-12) ___U.S.___, 132 S.Ct. 1327, 2012 U.S. LEXIS 2315, 2012 DJDAR 3627/CPER 206, DIS

The doctrine of sovereign immunity bars suits against states for monetary damages for violating the self-care provision of the federal Family and Medical Leave Act. The court’s ruling in Nevada Dept. of Human Resources v. Hibbs (2003) 538 U.S. 721, 2003 U.S. LEXIS 4272, 161 CPER 5, which allowed damages suits against states brought under a family-care provision of the act, did not apply to the self-care provision because there was no evidence the self-care provision was directed at leave policies that discriminated on the basis of sex.


Costa Mesa City Employees Assn. v.City of Costa Mesa [2012] 209 Cal.App.4th 298, 2012 Cal.App. LEXIS 971/CPER 208, LG

The Court of Appeal upheld the trial court’s injunction temporarily prohibiting contracts with private entities for most services performed by city employees until a final judgment after trial.


Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 2011 Cal.App. LEXIS 477/CPER 202, DIS

An employer must comply with California’s Fair Employment and Housing Act requirement that it consider reasonable accommodation for a disabled police officer even where the employee has been determined to be 100 percent disabled under the state’s workers’ compensation laws. The city should have evaluated whether the employee was able to perform the essential duties of the light-duty position he held at the time he was terminated, not those of a police officer in general.


Dahlia v. Rodriguez [9th Cir. 8-7-12] 10-55978, __ F.3d __, 2012 U.S. App. LEXIS 16377, 2012 DJDAR 10898/CPER 207, GEN

An officer who was placed on administrative leave after reporting that other officers were physically abusing inmates lost his First Amendment lawsuit because a three-judge panel felt constrained to follow precedent it believes was wrongly decided.The Ninth Circuit Court of Appeals repeatedly criticized a prior case which held that a police officer who reports wrongdoing does not speak as a private citizen, even if he gives the information to a different law enforcement agency.


Earl v. Nielsen Media Research, Inc. (2011) 658 F.3d 1108, 2011 LEXIS 19616/CPER 204, DIS

Where a 59-year-old terminated employee produced evidence that younger similarly situated employees were not fired, and that her termination was a deviation from company procedure, it was an error for the trial court to dismiss her claim of age discrimination under California’s Fair Employment and Housing Act. The plaintiff’s evidence raised a triable issue of fact as to whether the company’s stated reason for firing her was pretext for age discrimination.


Edgerly v. City of Oakland [2013] 211 Cal.App.4th 1191, 2013 Cal.App. LEXIS 1258/CPER 209, LG

A city administrator who claimed she was terminated for refusing to violate the city charter, ordinances, and regulations cannot sue under the Labor Code. Labor Code section 1102.5(c) protects employees from retaliation “for refusing to participate in an activity that would result in a violation of state or federal statute or a violation or noncompliance with a state or federal rule or regulation.” The court relied in part on the “home rule doctrine,” which allows a charter city to govern itself except on matters of statewide concern. The court also ruled that a claim based on refusing reimbursement requests could not prevail because reviewing such requests was part of the administrator’s job duties.


El Dorado County Superior Court v. International Union of Operating Engineers, Stationary Engineers, Loc. 39 (10-14-11) Nev.Co.Sup.Ct. No. PC20110397/CPER 205, TC

Petitions to confirm, correct, or vacate arbitration awards involving a dispute between a union and the court employer must be heard by an appellate justice from the panel established by Government Code Sec. 71639.5 and California Rule of Court 10.660.


Farnan v. Capistrano Unified School Dist. (9th Cir. 2011) 654 F.3d 975, 2011 U.S.App. LEXIS 17207/CPER 203, PS

A high school history teacher had qualified immunity from a suit brought by one of his students alleging that the student’s constitutional rights were violated when the teacher made comments hostile to religion.


Ferguson v. City of Cathedral City (2011) 197 Cal.App.4th 1161, 2009 Cal.App. LEXIS 978/CPER 203, GEN

After an employee’s lawyer ― fearing a behind-the-scenes attempt to scuttle a settlement agreement rescinding his client’s discharge ― sent the employer a letter asserting the agreement was “null and void,” the city employer had the right to discharge the employee, since it was no longer bound by the settlement agreement.


Filarsky v. Delia (4-17-12) ___U.S.___, 132 S.Ct. 1657, 2012 U.S. LEXIS 3105/CPER 206, GEN

A private attorney who was temporarily retained to assist in a city’s internal affairs investigation has the right to claim qualified immunity from suit brought under 42 USC Sec. 1983. The fact the plaintiff was not a permanent, full-time city employee was irrelevant to the determination of whether the defense was available to him.


Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 2011 Cal. App. LEXIS 1437/CPER 204, DIS

There was sufficient evidence to support a jury’s finding of hostile environment sexual harassment in violation of California’s Fair Employment and Housing Act. The plaintiff’s testimony regarding the sexual harassment she experienced was not inherently improbable.


Furtado v. State Personnel Board [2013] 212 Cal.App.4th 729, 2013 Cal.App. LEXIS 8/CPER 209, DIS

The California Fair Employment and Housing Act does not prohibit an employer from demoting a disabled correctional officer who could no longer perform the essential duties of his position even with reasonable accommodation.

Goldbaum v. Regents of the University of California (2011) 191 Cal.App.4th 703, 2011 Cal.App. LEXIS 8/CPER 202, HE

The Board of Regents of the University of California is immune under the California Constitution from Labor Code Sec. 218.5, which mandates that the prevailing party in an action brought for non-payment of wages, fringe benefits, or pension fund contributions be awarded attorney’s fees and costs. In cases where the subject matter involves internal affairs of the university that do not come within any exceptions to constitutional immunity, payment of an opposing party’s fees and costs is also within the regents’ constitutional authority to manage its own affairs.


Guerrero v. Superior Court of Sonoma County [2013] 213 Cal.App.4th 912, 2013 Cal.App. LEXIS 108/CPER 209, LG

When an in-home services support worker received no pay for more than two months, she sued Sonoma County and the public authority it set up for collective bargaining purposes, in addition to the woman she cared for. The court found the county and its public authority were joint employers. The court also rejected the contention that the county was not subject to state minimum wage laws and Industrial Welfare Commission Wage Order 15-2001.


Haligowski v. Superior Court of Los Angeles County (2011) 200 Cal.App.4th 983, 2011 Cal.App. LEXIS 1418/CPER 204, DIS

Individual employees cannot be held liable for discriminating against members of the armed forces in violation of California’s Military and Veterans Code Sec. 394.


Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, 2011 Cal.App. LEXIS 679/CPER 203, LG

Even if a public employer’s process for challenging discharge contains no exception for late-filed claims, due process requires that a good cause exception be read into the procedures. The city could not deny a post-termination hearing on the grounds that the terminated employee had filed an application for retirement benefits.


Harris v. City of Santa Monica [2013] 56 Cal.4th 203, 2013 Cal. LEXIS 941/CPER 209, DIS

Where unlawful discrimination is shown to be a substantial motivating factor in a decision to terminate an employee, but the employer proves it would have made the same decision absent the discrimination, the employer, while liable under California’s Fair Employment and Housing Act, cannot be made to pay damages or be ordered to reinstate the employee. Declaratory or injunctive relief is an available remedy in such a mixed-motive case where appropriate, and that attorney’s fees and costs could be awarded. The defense is only available if the employer can show, by a preponderance of the evidence, that it would have made the same decision for a non-discriminatory reason at the time it made its actual decision, not at some later date.


Hartnett v. Crosier (2012) 205 Cal.App.4th 685, 2012 Cal.App.LEXIS 495/CPER 206, PS

If a management employee is also acting in a supervisory capacity, he or she may not be exempt from liability for retaliation under the Reporting by School Employees of Improper Governmental Activities Act. While Education Code Sec. 44113(a) does apply to management employees who are supervisory employees, the remedies provided by section 44114(c) were not available to the plaintiff because he, himself, was a management employee. A petition for review is pending in the Supreme Court.


Hunt v. County of Orange (2012) 672 F.3d 606, 2012 U.S.App. LEXIS 2815/CPER 206, GEN

A lieutenant was not a policymaker, and therefore was protected under the First Amendment from retaliation for campaigning against the sheriff. However, the sheriff reasonably could have believed the lieutenant was an unprotected policymaker when he demoted him. As a result, the sheriff was immune from suit.


International Association of Firefighters Local Union 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 2011 Cal.App. LEXIS 635/CPER 203, LG

A charter city must comply with procedures established by the Firefighters Procedural Bill of Rights Act for appeals of discipline. The union’s motion to compel arbitration of the city’s refusal to bargain over the procedures was properly denied, since the Public Employment Relations Board has initial exclusive jurisdiction over arguable unfair labor practices.


International Brotherhood etc. v. City of Redding [2012] 210 Cal.App.4th 1114, 2012 Cal.App. LEXIS 1149/CPER 208 GEN

Retiree health benefits promised in a collective bargaining agreement may be vested rights that cannot be unilaterally eliminated.  The language used in the contract and the city council’s ratification of the collective bargaining agreement led to the court’s conclusion.


Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 2011 Cal.App. LEXIS 1397/CPER 204, LG

The county could not avoid complying with a back pay judgment to a former assistant sheriff on the grounds that he had agreed to be an at-will employee. His prospective waiver of PSOPBRA rights to notice, cause, and appeal of disciplinary action were invalid. A back pay award was not barred by the unclean hands doctrine, and the assistant sheriff was entitled to compensation from the time of his termination to the date he pled no contest to state law felonies unrelated to the reasons for his termination. The court upheld the trial court’s decision that Jaramillo was fired in violation of the whistleblower statute, Labor Code Sec. 1102.5, and affirmed the award of attorneys’ fees against the county.


Johnson v. Board of Trustees of the Boundary County School Dist. No. 101 (9th Cir. 2011) 666 F.3d 561, 2011 U.S. App. LEXIS 24305/CPER 205, DIS

A special education teacher, with a history of depression and bipolar disorder, who failed to meet the requirements to renew her certificate, is not a “qualified individual with a disability” within the meaning of the Americans with Disabilities Act. An individual who fails to satisfy the job prerequisites is not “qualified” unless the prerequisite itself is discriminatory.


Johnson v. Poway Unified School Dist. (9th Cir. 2011) 658 F.3d 954, 2011 U.S. App. LEXIS 18882/CPER 204, PS

There was no First Amendment violation when a school district ordered a high school math teacher to remove two banners containing religious speech from his classroom. The teacher did not have the right to “use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom.”


Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d 1062, 2012 U.S. App. LEXIS 9311/CPER 206, GEN

The assistant to the police chief could not escape liability for retaliating against a confidential administrative assistant for her deposition testimony in a civil rights suit under 42 USC Sec. 1983. It was clear at the time of the termination that deposition testimony in a civil rights lawsuit was protected by the First Amendment, so the supervisor was not immune from liability.


Kasten v. Saint-Gobain Performance Plastics Corp. (5-26-11) Supreme Ct. 09-834, ___U.S.___,  1315 S.Ct. 1325, 2011 U.S. LEXIS 2417/CPER 202, GEN

The Fair Labor Standards Act’s anti-retaliation provision protects employees who file oral as well as written complaints.


Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 2011 Cal.App. LEXIS 690/CPER 203, DIS

The court upheld the dismissal of allegations of sex discrimination and sexual harassment in violation of the Fair Employment and Housing Act, finding that the alleged offensive comments did not express actual sexual desire or intent. It explicitly rejected the Second District’s holding in Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 2006 Cal.App. LEXIS 1023, that a plaintiff alleging same-sex harassment need not prove the harassment was motivated by sexual desire in order to prevail. The court reversed the lower court’s dismissal of allegations of retaliation, where evidence showed that the employer knew or should have known of retaliatory conduct by co-workers and failed to take steps to stop it.


Knox v. Service Employees International Union, Loc. 1000 [6-21-12] 10-1121, __U.S. __, 132 S.Ct. 2277, 2012 U.S. LEXIS 4663, 2012 DJDAR 8391/CPER 207, GEN

The Supreme Court held unconstitutional SEIU Local 1000’s extra fee assessment to fight two ballot measures because the union did not provide non-members with advance notice and an opportunity to object to paying the special agency fees. In addition to deciding the narrower question presented by the facts, a fractured court questioned the validity of the opt-out procedure it sanctioned in Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 1986 U.S. LEXIS 27, 68X CPER 1. Justice Samuel Alito’s majority opinion provides plenty of advice to those who would challenge agency or “fair share” fees. Justices Breyer and Kagan dissented.


Lanigan v. City of Los Angeles (2011) 199 Cal.App.4th 1020, 2011 Cal.App. LEXIS 1262/CPER 204, LG

A police officer’s waiver of his rights under the Public Safety Officers Procedural Bill of Rights Act was valid and enforceable in a second disciplinary action where he avoided termination in a prior case by agreeing that he would resign if charged with similar conduct in the future.


Lawler v. Montblanc North America LLC [9th Cir. 2013] 704 F.3d.1235, 2013 U.S.App. LEXIS 761/CPER 209, DIS

Where an employer discharged a store manager because she could not come to work for five months due to a physical condition, there was no violation of the California Fair Employment and Housing Act’s prohibition against disability discrimination. The manager could not establish a prima facie case of discrimination because she could not perform the essential functions of her position with or without reasonable accommodation.


Lawrence v. Hartnell Community College Dist. (2011) 194 Cal.App.4th 687, 2011 Cal.App. LEXIS 462/CPER 202, PS

Two executive assistants to the superintendent/president of a community college district were not demoted to inferior positions within the meaning of Education Code Sec. 88001(d) when they were temporarily reassigned to be assistants to vice presidents. Nor were their due process rights violated when they were reassigned without notice or hearings.


Long Beach Police Officers Assn. v. City of Long Beach (2012) 203 Cal.App.4th 292, 2012 Cal.App. LEXIS 109, rev. granted/CPER 205, LG

The Supreme Court granted review of the decision that generalized safety concerns were insufficient to prevent disclosure of the names of Long Beach police officers involved in a shooting. No other exceptions of the California Public Records Act applied that would keep the names confidential.


Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 2012 Cal.App. LEXIS 47/CPER 205, GEN

A teacher’s action to prohibit disclosure of records under the California Public Records Act was permissible. However, the teacher’s request to enjoin release of the records regarding the investigation of a student’s allegations of sexual harassment was properly denied.


McIntyre v. Sonoma Valley Unified School Dist. (2012) 206 Cal.App. 4th 170, 2012 Cal.App. LEXIS 608/CPER 206, LG

A teacher had been properly classified as temporary under Education Code Sec. 44920, absent evidence that the number of temporary teachers exceeded the number of teachers on leave. Section 44917 could not be invoked for a contrary result.


Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 2012 Cal.App. LEXIS 14/CPER 205, GEN

An administrator who was demoted after she blew the whistle on hiring irregularities and challenged the legality of college polices is entitled to a new trial as the result of erroneous jury instructions. The court clarified what disclosures are protected under Labor Code Sec. 1102.5 and Education Code Sec. 87160. Allowing the jury to consider the administrator’s prospective retirement benefits as mitigation of back pay was erroneous.


Molina v. Board of Administration, California Public Employees Retirement System (2011) 200 Cal.App.4th 53, 2011 Cal.App. LEXIS 1328/CPER 204, GEN

Characterization of settlement proceeds as back pay is necessary before the California Public Employees Retirement System will use the amount to calculate a pension benefit, but that may not make it “final compensation” under the Public Employees Retirement Law (PERL). If the amount does not reflect the employee’s “payrate” and “special compensation,” the back pay amount will not be used to figure final compensation.


Neves v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 61, 2012 Cal.App. LEXIS 88/CPER 205, SE

An employer of a public safety officer must inform the officer of its decision to impose discipline within 30 days of making that determination, as required by the Public Safety Officers’ Procedural Bill of Rights Act. That 30-day period does not necessarily run from the date the employer notifies the officer that its investigation is complete and discipline may be imposed. Absent evidence that the final decision was made before the agency issued a notice of adverse action, the date of the adverse action notice itself may begin the 30-day period.


Nichols v. Dancer (2011) 657 F.3d 929, 2011 LEXIS 19006/CPER 203, GEN

A public employer needs more than mere speculation that an employee may be disloyal or disruptive in the workplace before it may interfere with her First Amendment right of association. Sitting next to her supervisor at the school board meeting during which he was fired was not sufficient justification to reassign an administrative assistant.


Okwu v. McKim [2012] 682 Fed.3d 481, 2012 U.S. App. LEXIS 11874/CPER 207, DIS

A state employee may not sue state officers under 42 USC section 1983 for violations of Title I of the Americans with Disabilities Act. By drafting a comprehensive remedial scheme for Title I violations, Congress manifested its intent to preclude the availability of section 1983 remedies. That intent was not changed by a subsequent Supreme Court decision holding that the Eleventh Amendment gives state employers immunity from suit under Title I.


Pantoja v. Anton (2011) 198 Cal.App.4th 87, 2011 Cal.App. LEXIS 1036/CPER 204, DIS

The trial court erred when it excluded evidence of the employer’s harassing conduct towards female employees other than the plaintiff, even though the conduct occurred out of the plaintiff’s presence and at times when she was not employed.


Paratransit, Inc. v. Unemployment Insurance Appeals Board [2012] 206 Cal.App.4th 1319, 2012 Cal.App. LEXIS 695/CPER 207, LG

An employee’s refusal to sign a memorandum of discipline was misconduct, not a simple mistake or good faith error in judgment. The court overturned the board’s contrary conclusion, despite the fact that the language of the disciplinary memo differed from the prescribed notice in the collective bargaining agreement.


Paulsen v. Local 856 of the Intl. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 2011 Cal.App. LEXIS 308/CPER 202, LG

A breach of a union’s duty of fair representation is an unfair labor practice under the Meyers-Milias-Brown Act. An allegation of breach of the duty is an unfair practice claim that is subject to the initial exclusive jurisdiction of the Public Employment Relations Board. Therefore, the employees’ lawsuit could not be brought in court.


Reed v. Los Angeles Unified School Dist. [2012] 208 Cal.App.4th 322, 2012 Cal.App. LEXIS 868/CPER 207, PS

The Los Angeles Unified School District thought it had put the case of Reed v. LAUSD to rest when it agreed to bypass seniority-based layoffs at 45 schools in a settlement with the student plaintiffs.  However, the Second District Court of Appeal, ruling on an appeal brought by United Teachers of Los Angeles, has voided the settlement and sent the case back to the lower court for trial on the merits.


Rehmani v. Superior Court of Santa Clara County (2012) 204 Cal.App.4th 945, 2012 Cal.App. LEXIS 364/CPER 206, DIS

The plaintiff, a Muslim born in Pakistan, showed that triable issues existed as to his employer’s liability for workplace harassment based on national origin and religion in violation of the Fair Employment and Housing Act. The court overturned the trial court’s grant of summary adjudication in favor of the employer.


Retired Employees Association of Orange County v. County of Orange (2011) 52 Cal.4th 1171, 2011 Cal. LEXIS 12109/CPER 204, GEN

California law permits a vested right to retirement health benefits to be implied from a county ordinance or resolution, although a vested contractual right should not be easily inferred. The California court did not decide whether Orange County retirees have the vested right that REAOC claimed.


Requa v. The Regents of the University of California [2012; cert’d. for publication 1-29-13] 213 Cal.App.4th 213, 2012 Cal.App. LEXIS 1340/CPER 209, GEN

Retired workers have been given a second chance to show that they have vested rights to retirement health benefits promised by their former employers. The appellate courts found that trial court erred when it dismissed the retirees’ claims at the initial pleading stage of the case. The court relied on the California Supreme Court’s decision in Retired Employees Association of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 2011 Cal.LEXIS 12109, 204 CPER 57, which held that vested benefits may arise from an implied term of a contract.


Richey v. AutoNation, Inc. [11-13-12] B234711 [2nd Dist.] ____Cal.App.4th____, 2012 Cal.App. LEXIS 1177/CPER 208, DIS

An arbitrator made a clear legal error when he upheld an employer’s refusal to reinstate an employee because the employer had an “honest belief” that the employee had violated company policy when he worked at his own restaurant while on approved medical leave under the California Family Rights Act. The court  found the honest belief defense to be incompatible with California statutes, regulations, and case law.


Riverside County Sheriff’s Department v. Stiglitz [2012] 209 Cal.App.4th 883; 2012 Cal.App. LEXIS 1025/CPER 208, GEN

The statutory scheme for discovery of peace officer personnel records permits a hearing officer to order a law enforcement employer to produce disciplinary records of other officers for a peace officer’s disciplinary appeal. A reading of the statute that limits such powers to courts, rather than administrative bodies, would conflict with due process requirements.


Riverside Sheriffs Assn. v. County of Riverside (2011) 193 Cal.App.4th 20, 2011 Cal.App. LEXIS 220/CPER 202, LG

Although the county rescinded an officer’s medical separation and applied for her disability retirement, she had been deprived of wages for over a year while waiting for her disability payments. The officer was entitled to appeal the denial of wages and benefits under the collective bargaining agreement and the Public Safety Officers Procedural Bill of Rights Act.


Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 368, 2011 Cal.App.LEXIS 1634/CPER 205, LG

The Public Safety Officers Procedural Bill of Rights Act entitles police chiefs to notice of removal, a statement of reasons, and an opportunity to appeal termination, regardless of whether the chief has a property interest in employment. The court also rejected the contention that the chief was not “removed” from office because the city continued to pay him after he was told to pack up and leave.


Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 2011 Cal.App.LEXIS 1636/CPER 205, LG

A police chief’s court victory met one of the criteria for an award of attorneys’ fees under Code of Civil Procedure Sec. 1021.5.


Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 2011 Cal.App. LEXIS 1075/CPER 203, DIS

The California Family Rights Act entitles an eligible employee to 12 weeks of unpaid leave during any 12-month period to recover from a serious health condition. Upon return from leave, the employer is required to reinstate the employee to the same or a comparable position. However, these protections did not apply where the employee’s leave exceeded 12 weeks.


Sacramento County Employees Retirement System v. Superior Court of Sacramento County (2011) 195 Cal.App.4th 440, 2011 Cal.App. LEXIS 569/CPER 202, LG

Information about pensions of individual county retirees must be disclosed if requested under the Public Records Act.


Samper v. Providence St. Vincent Medical Center (9th Cir. 2012) 675 F.3d 1233, 2012 LEXIS 7278/CPER 206, DIS

A hospital’s refusal to accommodate a neonatal nurse whose disability interfered with her ability to come to work on a regular basis was not a violation of the federal Americans with Disabilities Act. Regular attendance was an essential function of the nurse’s position.


San Diego County Employees Retirement Assn. v. Superior Court (2011) 196 Cal.App.4th 1228, 2011 LEXIS 823/CPER 203, LG

A newspaper and a pension watchdog organization have rights to disclosure of retirees’ pensions. The court required the disclosure of the names of retirees who received more than $8,333 in monthly benefits, the amount received, and how the amount was calculated.


San Diego Municipal Employees Assn. v. Superior Court [2012] 206 Cal.App.4th 1447, 2012 Cal. LEXIS 715/CPER 207, GEN

The Public Employment Relations Board’s decision to seek an injunction against a pension ballot measure did not allow the City of San Diego to skip PERB’s hearing on an unfair practice charge. Nothing bars the city from presenting to PERB its statutory and constitutional defenses to the unfair practice charge. The court overturned a trial court order staying an administrative law judge hearing on the charges. The city has filed a petition for review in the Supreme Court.


San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 2011 Cal.App. LEXIS 524/CPER 202, PS

The Commission on Professional Competence erred when it reinstated a teacher who had been dismissed by the district for posting an ad on Craigslist that contained graphic photos and obscene text soliciting sex.


San Francisco Unified School Dist. v. City and County of San Francisco (2012) 205 Cal.App.4th 1070, 2012 Cal.App. LEXIS 530/CPER 206, PS

Education Code Sec. 45318, which places San Francisco municipal and public school classified employees under the same civil service system and allows city employees to bump district employees, does not violate the California Constitution.
Schechner v. KPIX-TV [2012] 686 F.3d 1018, 2012 U.S. App. LEXIS 10766/CPER 207, DIS

The Ninth Circuit Court of Appeals clarified that a plaintiff may use statistical evidence to support a prima facie case of disparate-treatment age discrimination under the Fair Employment and Housing Act, even if that evidence does not take into account the defendant’s proffered nondiscriminatory reason for the discharge.


Schmidt v. Contra Costa County [9th Cir. 2012] 693 F.3d 1122, 2012 U.S. App. LEXIS 18973/CPER 208, TCE

Ninth Circuit Court of Appeals defined the authority of a superior court to establish minimum qualifications for employees and held that judges on a court executive committee are immune from a lawsuit if their action is legislative in nature.

Service Employees International Union, Loc. 1000 v. Brown (2011) 197 Cal.App.4th 252, 2011 Cal.App. LEXIS 885/CPER 203, SE

Employees in special fund agencies were properly furloughed because the legislature approved furloughs for employees in departments that received an appropriation.


Service Employees International Union, Loc. 1021 v. San Joaquin County (2011) 202 Cal.App.4th 449, 2011 Cal.App. LEXIS 1639/CPER 205, ARB

When an employee chose to arbitrate his discharge, rather than appeal it to the civil service commission, the termination dispute was still arbitrable after he applied for retirement benefits. In some cases involving civil service appeals, the courts have ruled that a commission lost jurisdiction of a disciplinary appeal when the employee retired. But here, the court criticized the application of concepts of “jurisdiction” to arbitration, emphasizing that the arbitrator’s authority derives from the parties’ contract.


Shelley v. Geren (9th Cir. 2012) 666 F.3d 599, 2009 U.S. App. LEXIS 623/CPER 205, DIS

An employee’s superior qualifications and two hiring panelists’ inquiry into projected retirement dates were sufficient evidence to defeat the employer’s summary judgment motion in a lawsuit alleging that the United States Army Corps of Engineers violated the federal Age Discrimination in Employment Act when it failed to promote him.


Singletary v. Local 18 of the International Brotherhood of Electrical Workers [11-21-12; certified for publication 12-18-12] 212 Cal.App.4th 34, 2012 Cal.App. LEXIS 1281/CPER 209 LG

Employees of the City of Los Angeles must take unfair practice claims to the city’s Employee Relations Board, rather than filing a complaint in court. If they disagree with ERB’s decision, they can challenge it in court only by a petition at the appellate level, the court advised.


Sonoma County Association of Retired Employees v. Sonoma County [9th Cir. 2-25-13] No. 10-17873, ___ F.3d ___, 2013 U.S.App. LEXIS 3856, 2013 DJDAR 2421/CPER 209, GEN

Retired workers have been given a second chance to show that they have vested rights to retirement health benefits promised by their former employers. The appellate courts found that trial court erred when it dismissed the retirees’ claims at the initial pleading stage of the case. The court relied on the California Supreme Court’s decision in Retired Employees Association of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 2011 Cal.LEXIS 12109, 204 CPER 57, which held that vested benefits may arise from an implied term of a contract.


Sonoma County Employees’ Retirement Assn. v. Superior Court (2011) 198 Cal.App.4th 986, 2011 Cal.App. LEXIS 1124/CPER 203, LG

The court upheld an order compelling the association to provide the Press Democrat with the names and retirement dates of individuals receiving an annual pension of at least $100,000. It overturned the portion of the trial court’s order that would have forced disclosure of retirees’ ages at retirement.


Staub v. Proctor Hospital (3-1-11) Supreme Ct. 09-400, ___U.S.___, 131 S.Ct. 1186, 2011 U.S. LEXIS 1900, 2011 DJDAR 3222/CPER 202, DIS

Using the “cat’s paw” liability theory, an employer is liable under the Uniformed Services Employment and Reemployment Rights Act of 1994 “if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action,” even if higher management made the decision.


Stockton Teachers Assn., CTA/NEA v. Stockton Unified School Dist. (2012) 204 Cal.App.4th 446, 2012 Cal.App. LEXIS 372/CPER 206, PS

The terms of Education Code Sec. 44909, which applies to teachers hired for a categorically funded project, must be strictly followed for the employees to be classified as temporary. Because the district did not comply with the statute’s terms, the employees must be treated as probationary.

Sullivan v. Centinela Valley Union High School Dist. (2011) 194 Cal.App.4th 69, 2011 Cal.App. LEXIS 400/CPER 202, PS

A probationary teacher who knew of the district’s decision not to reelect him, and who willfully evaded service of notice of that decision, is deemed timely served. The court rejected the teacher’s claim that he had the right to be reinstated with permanent tenure because the district failed to personally serve him by the March 15 deadline required by Education Code Sec. 44929.21.


Theiler v. Ventura County Community College Dist. (2011) 198 Cal.App.4th 852, 2011 Cal.App. LEXIS 1108/CPER 203, PS

A basketball coach’s time spent coaching outside of the classroom does not count towards the 60 percent of full-time assignment required to be considered a contract employee under the Education Code. The coach was a temporary employee not entitled to due process.


Thornton v. California Unemployment Insurance Appeals Board (2012) 204 Cal.App.4th 1403, 2012 Cal.App. LEXIS 432/CPER 206, GEN

The law that requires public entities to pay for the defense of an employee who incurs legal costs for conduct in the course and scope of employment does not apply to costs of an attorney hired to assist with pre-litigation investigations of the employee. Labor Code Sec. 2802 is not applicable to public entities.


Union of American Physicians and Dentists v. Brown (2011) 195 Cal.App.4th 691, 2011 Cal.App. LEXIS 587/CPER 202, SE

The court upheld furloughs for state employees paid from special funds or federal funding


United Teachers of Los Angeles v. Los Angeles Unified School Dist. [2012] 54 Cal.4th 504, 2012 Cal. LEXIS 6164/CPER 207, PS

The California Supreme Court has held that courts must deny petitions to arbitrate provisions in a collective bargaining agreement that conflict with the Education Code. Because it could not determine whether the provisions cited in UTLA’s grievances were in conflict with the code, the court remanded the case to the trial court to make that determination.


Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, 2011 U.S. App. LEXIS 15914/CPER 203, GEN

An employee terminated for violating a last chance agreement was entitled to a pre-termination due process hearing, even though he had agreed that non-compliance with the agreement would result in his “immediate and final termination.” He was not an employee on the day he made a request for leave under the Family and Medical Leave Act, and therefore was not entitled to the protection of the act when he requested the time off that led to his second termination.


Welch v. California State Teachers Retirement Board (2012) 203 Cal.App.4th 1, 2012 Cal.App. LEXIS 85/CPER 205, PS

The California State Teachers Retirement Board provided misinformation on applicable eligibility requirements for disability retirement to a teacher who claimed she was disabled. As a result, the teacher did not apply for the benefits in a timely manner. The court sent the matter back to CalSTRS to consider how it could correct its error and relieve her of the harm she suffered because of it.


Williams v. Public Employment Relations Board (California Faculty Assn.) (2012) 204 Cal.App.4th 1119, 2012 Cal.App. LEXIS 394/CPER 206, GEN

The court declined to overturn the Public Employment Relations Board’s decision not to issue a complaint against the California Faculty Association for refusing to allow non-members to vote in a union election. Adhering to strict limits on its review of PERB’s decisions not to issue complaints, the court held that the decision did not violate the professors’ constitutional rights or rest on an erroneous interpretation of the Higher Education Employer-Employee Relations Act.


Wills v. Superior Court of Orange County (2011) 195 Cal.App.4th 143, 2011 Cal.App. LEXIS 583/CPER 202, DIS

Misconduct that includes threats or violence against coworkers can be a legitimate, non-discriminatory basis for termination even where the conduct is caused by the employee’s disability. The employer may distinguish between disability caused misconduct and the disability itself.


Wood v. City of San Diego [9th Cir. 2012] 678 F.3d 1075, 2012 U.S. App. LEXIS 9418/CPER 207, DIS

The City of San Diego’s surviving spouse benefit does not violate Title VII’s prohibition of sex discrimination. The court upheld the lower court’s dismissal of the disparate treatment and disparate impact claims alleging that the benefit paid to married retirees is larger than that paid to single retirees, which discriminates against female retirees because male retirees are more likely to be married.