Supervisor's Hostile Behavior Did Not Constitute Adverse Employment Action

Prison psychologist John Doe sued his former employer, the California Department of Corrections and Rehabilitation (CDCR), discrimination, retaliation, harassment based on disability, and failure to accommodate his disabilities, dyslexia and asthma. According to Doe, CDCR's refusal to provide him a private, distraction-free office, as needed to accommodate his dyslexia, caused him stress, exacerbating his asthma.

The trial court granted summary judgment in favor of CDCR.

The court of appeal affirmed, holding that Doe failed to provide evidence of any adverse employment action, as needed needed to support his discrimination and retaliation claims. Doe cited his supervisor's criticism of his work at a job performance meeting, which meeting he described as "hostile" and "like an interrogation." He also cited his supervisor's conduct in sending police to his home for a welfare check when he failed to appear for work, in falsely accusing him of bringing a cell phone into the prison, and in designating him as the on-call crisis person on a day when he needed to leave early for a union meeting. Even if these allegations were well-founded, and the supervisor acted with malice, none of these actions in any way materially affected the terms, conditions, or privileges of Doe's job. Although the supervisor's conduct may have been upsetting, none of it resulted in either discipline or demotion. CDCR's alleged rejection of Doe's accommodation requests could also not be construed as an adverse employment action. Doe's harassment claim, which relied on the same allegations of supervisor misconduct, was similarly unavailing. Finally, Doe failed to present any facts to dispute CDCR's evidence that Doe, and not CDCR, was responsible for any breakdown in the interactive accommodation process.

Doe v. CDCR, November 27, 2019

Notices Provided to Section 8 Tenant Adequately Apprised her of Reasons for Impending Termination of Benefits

Etta Johnson's landlord evicted her from her Section 8 housing based on repeated violations of her lease. Upon learning of the eviction, the housing authority served Johnson with a notice of a scheduled meeting to discuss it. Johnson was asked to bring various items with her, including various specific documents pertaining to the eviction. In February 2017, after the meeting, the housing authority provided Johnson a summary of the meeting, in which it found her in violation of her obligations as a participant in the Section 8 program.

The housing authority cited several notices from Johnson's landlord stating that she had "harassed, threatened, and caused bodily harm" to her neighbors.  The summary directed Johnson to submit the previously requested documents, which it listed, no later than March 29. On April 24, 2017, the housing authority issued a pre-termination notice formally notifying Johnson of its intent to terminate her Section 8 benefits.  Among the bases for the termination were Johnson's "repeated violations" of her lease and her failure "to supply the housing authority with required information."  After hearing, Johnson's benefits were terminated.

Johnson filed a petition for writ of mandate, challenging the termination of benefits. She argued that the April 24 pre-termination notice violated her due process rights because it did not adequately inform her of the allegations against her so she could prepare a defense. The trial court agreed and granted the writ petition, finding that the pre-termination notice was deficient for failing to identify, among other things, what "additional information" Johnson failed to provide.

The court of appeal reversed, holding that the pre-termination notice, in conjunction with the previously issued summary of meeting, provided Johnson adequate notice both of the documentation she was required to provide and of the factual bases for the violations later relied on by the housing agency in terminating Johnson from the program. Johnson was provided the summary more than a month before the pre-termination notice. The two documents together were sufficient to enable Johnson to prepare a defense.

Johnson v. Housing Authority of the City of Oakland.  Filed July 16, 2019; Ordered pblished, August 8, 2019.

24 Hour Brown Act Notice Not Required Because Board Did Not Hear Charges Or Complaints

The Fourth District held that a school district administrator was not entitled to 24-hour notice of a governing board meeting to address whether her admitted criminal conduct warranted demotion.

The court held that the school district did not violate the Brown Act.  The Brown Act requires that school district board meetings be open to the public unless otherwise authorized by statute.  One such statutory authorization is Gov. Code §54957, known as the "personnel exception," which allows a local agency to hold a closed session hearing to consider the discipline or dismissal of a public employee or to hear complaints or charges brought against an employee.  If the purpose of the closed session is to hear complaints or charges, the employee must be provided 24-hour written notice of the meeting.

The 24-hour rule did not apply to the closed session because the board did not hear complaints or charges at the meeting; rather, it debated whether the facts established by the employee's guilty plea constituted a sufficient basis for discipline. Such debate could properly be held in closed session without notice. 

Ricasa v. Office of Administrative Hearings (Southwest Community College District Governing Board), December 17, 2018

Courthouse Employees Properly Barred from Wearing any type of Union Regalia

The Court of Appeal granted a writ petition and set aside parts of a Public Employment Relations Board (PERB) decision. The court held that the superior court's valid interest in ensuring the appearance of impartiality justified a personnel rule barring courthouse employees from, among other things, wearing union regalia anywhere in the courthouse.

The Superior Court of Fresno County issued rules prohibiting court employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior court approval; (3) distributing literature during nonworking time in working areas; and (4) displaying writings or images not published by the court in work areas visible to the public. The court employees' union filed an unfair practice charge with PERB, alleging that the rules violated the Trial Court Employment Protection and Governance Act.

PERB agreed, finding that the superior court rules prohibiting employees from wearing union regalia anywhere in the courthouse and from displaying images that are not published by the court in work areas visible to the public were overly broad and interfered with rights protected by the Trial Court Act. It also determined that the restriction on soliciting during work hours and the ban on distributing literature in working areas were ambiguous and overly broad. PERB considered and upheld its authority to remedy these violations and ordered the superior court to rescind the rules. The court filed a writ petition challenging PERB's decision.

The court of appeal granted the court's writ petition, holding that PERB erred in finding that all of the challenged rules violated the Trial Court Act. The court explained that the superior court has a valid interest in regulating its workforce to ensure that the judicial process appears impartial to all appearing before it. Under the existing law and the facts presented regarding interactions with the public in the relevant courthouses, this interest was sufficient to justify the broad restrictions on employee clothing adopted by the superior court.

Further, the superior court's bans on soliciting during working hours and displaying images in areas visible to the public were not ambiguous and thus were properly adopted. The court agreed with PERB, however, that a regulation prohibiting the distribution of literature in working areas was ambiguous as to the meaning of "working areas." Separation of powers concerns did not prohibit PERB from imposing a remedy with respect to that regulation. The court accordingly affirmed PERB's decision invalidating the prohibition on distributing literature, but set aside PERB's remaining conclusions. Justice Franson dissented in part, finding that the majority erred in upholding a rule barring all courthouse employees from wearing or displaying any item of union regalia.

Fresno County Superior Court v. PERB, December 17, 2018.

Retired County Employees Sufficiently Alleged County's Implied Contract to Provide Healthcare Benefit in Perpetuity

The court of appeals affirmed in part and reversed in part a district court judgment. The court held that retired county employees made a sufficient showing of an implied contract to provide them a certain healthcare benefit in perpetuity to support their claim that the county breached that contract by reducing the benefit.

 
Retired employees Gaylan Harris and others sued the County of Orange after it restructured various benefits previously provided them. The retirees argued, among other things, that the restructuring violated an implied contract to provide them a monthly grant (the "grant benefit") to defray the cost of health care premiums.

The district court granted the county's motion to dismiss.  However, the court of appeals reversed in part, holding that the district court erred in dismissing the retirees' contractual claim.

In order to survive the county's motion to dismiss, the retirees' complaint needed to plausibly allege that the county (1) entered into a contract that included implied terms providing healthcare benefits to retirees that vested for perpetuity; and (2) created that contract by ordinance or resolution. The retirees made such a showing. They alleged the existence of annual memorandums of understanding (MOUs) establishing a right to the grant benefit. They further alleged that they "had an implied contractual right to receive the grant benefit…throughout their retirement." In support, they made specific allegations regarding the basis for this implied right, including allegations regarding the course of negotiations for the grant benefit. These allegations plausibly supported the conclusion that the county impliedly promised a lifetime benefit that could not be unilaterally eliminated or reduced. Among other things, they alleged the establishment of a long-term funding mechanism, including the commitment of a large sum of money.

This allegation undermined the county's contention that there was no promise to provide the grant benefit beyond the duration of any single one-year MOU. They further alleged that active employees were required to contribute 1% of their wages to fund the grant benefit, which allegation supported the notion that the parties intended the benefit to be available for employees throughout their retirements, rather than eliminated or reduced before employees could fully benefit from their earlier contributions. Because the county did not dispute that the annual MOUs were adopted by resolution of the county board of supervisors, the district court erred in dismissed the retirees' contract claim regarding the grant benefit.

Harris v. County of Orange, Septembner 7, 2018