• Dean Royer

February 2018 employment law decisions

Disclosure of personal information and infliction of emotional distress verdict upheld.

February 21, 2018, Fourth District Court of Appeal, Delane Hurley v. California Department of Parks and Recreation: A jury found in favor of the Department for Ms. Hurley’s employment discrimination, retaliation, and harassment claims; and in favor of Ms. Hurley for a disclosure of personal information claim (Information Practices Act) and infliction of emotional distress claims. On appeal, Ms. Hurley asserted that the trial court excluded evidence relevant to her discrimination/ retaliation/ harassment claims. The Fourth District found that Ms. Hurley failed to show, beyond conclusory argument, that the excluded evidence would have affected the jury’s verdict. As a result, she waived the issue or failed to demonstrate the required prejudice caused by the exclusion. The Department contended that there was insufficient evidence to support the verdict regarding the personal information claim. The appellate court disagreed because there was evidence that the Department maintained a “supervisory drop file” that a reasonable jury could decide contained Ms. Hurley’s name, corrective or disciplinary actions taken again her, her application to add her domestic partner as a health insurance beneficiary, a note from her psychologist placing her on leave for one month, and information that Ms. Hurley failed her probation at a prior job. This type of information qualifies as “personal” under the Information Practices Act. The Fourth District concluded that there was sufficient evidence that the Department improperly (not in the ordinary course of official duties) disclosed this personal information because Ms. Hurley’s supervisor gave it to a nonsupervisory employee with lesser rank than Ms. Hurley and the supervisor received the drop file while she was on administrative leave. Finally, the court of appeal concluded there was sufficient evidence to support the emotional distress claims based on the disclosure of the drop file, the supervisor discussing Ms. Hurley’s personal information with another employee in Ms. Hurley’s presence, and the supervisor’s acts and comments about Ms. Hurley’s sexual orientation.

Administrative filing requirement for civil servants with whistle-blower claims.

February 16, 2018, Second District Court of Appeal, Shawn Terris v. County of Santa Barbara: Ms. Terris received a layoff notice and then filed a complaint with the County’s Civil Service Commission alleging discrimination for exercising her right to file a claim against the County. The Commission ruled that it could not decide the discrimination claim because Ms. Terris had not filed a complaint with the County’s Equal Employment Opportunity Office (EEO). Ms. Terris then filed a case against her employer for whistle-blower retaliation. The trial court dismissed her case (summary judgment) on grounds that she did not comply with administrative filing requirements. On appeal, the Second District found that the EEO complaint was available and required, after which an appeal to the Commission was possible. Ms. Terris did not file with the EEO and went directly to the Commission. The appellate court rejected Ms. Terris’s contention that she was excused from filing with the EEO. The Second District concluded that a decision (Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022) and a Labor Code provision (section 244) provide that an employee need not file with the California Labor Commissioner before suing her employer, but do not address any required civil service claims.

No adverse employment action based on an employee’s private sexual conduct.

February 9, 2018, Ninth Circuit Court of Appeals, Janelle Perez v. City of Roseville: Ms. Perez was a police officer for the Roseville Police Department. The Department terminated her after an internal affairs investigation into her extramarital romantic relationship with another police officer. She sued her employer for an alleged violation of her right to privacy and intimate association under the U.S. Constitution. The trial court dismissed the claim (summary judgment). On appeal, the Ninth Circuit determined whether there was a factual dispute and whether the constitutional right was clearly established. The appellate court concluded that there was a factual dispute as to whether the City of Roseville terminated Ms. Perez at least in part on the basis of her extramarital affair: the Police Chief gave testimony that the investigation played a role in the termination decision; a Captain testified that the affair was significant to him and issued written reprimands to Ms. Perez and recommended termination based on the investigation; two individuals involved in the termination expressed moral disapproval of Ms. Perez’s conduct; and issues with Ms. Perez’s job performance were “discovered” immediately after the investigation revealed the affair. The Ninth Circuit also found that Ms. Perez’s constitutional right was clearly established by its 1983 decision that prohibited government employers from taking adverse action on the basis of private sexual conduct unless such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. The Ninth Circuit rejected decisions by the Fifth and Tenth Circuits that did not recognize the constitutional right.

#Whistleblower #Emotionaldistress #Constitutionalrights #Privacy #Administrativeexhaustion #Retaliation

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