Tuesday, April 28, 2009
Ninth Circuit Allows Officer to Sue County for Retaliation
By Sherri M. Okamoto, Staff Writer
A county police officer presented triable issues of fact on his claim that he was retaliated against for testifying in support of a class action alleging discrimination within his agency, the Ninth U.S. Circuit Court of Appeals has ruled.
The court yesterday ordered publication of its decision allowing Los Angeles County Office of Public Safety officer Richard Robinson’s civil rights complaint against the county and several of his colleagues to proceed.
Granting Robinson’s request for publication, the panel withdrew its Jan. 8 memorandum disposition, and ordered publication of the opinion affirming U.S. District Court Judge Gary A. Feess’ denial of the defendants’ motion for summary judgment.
Robinson was employed as a sergeant with the Los Angeles County Office of Public Safety, more commonly known as the Los Angeles County Police.
The agency was formed in 1998 as a consolidation of the former Park Police from the Department of Parks and Recreation and the Safety Police from the Departments of Health and Internal Services to provide law enforcement services to the patrons, employees, and properties of county departments. It employs 580 sworn law enforcement personnel, and bills itself as the fourth largest law enforcement agency in Los Angeles County.
Between 2002 and 2006, Robinson claimed that he was denied promotion because he had testified in a class action alleging discrimination by the agency and had filed misconduct reports within his department.
Robinson reported a fellow officer who allegedly performed work for an outside employer during work hours, officers who appeared to be drinking on the job, officers who wore tattoos possibly indicative of anti-Semitic attitudes, cases of potential battery or excessive force, and a “Parking for Irish Only” sign allegedly placed by officers.
After failing to receive what he considered an adequate response, Robinson said he also took several steps to follow up on his reports, including contacting internal affairs and discussing the complaints with superior officers.
He alleged that his superior officers suggested he stop filing misconduct reports, in one case, advising him that if he “didn’t bring so many issues forward …maybe that would help in terms of getting promoted to lieutenant.”
In 2003, Robinson took an examination for promotion to lieutenant. Although his score was among the highest of the candidates and he received favorable work reviews, Robinson was not promoted before the eligibility list expired in 2006.
Robinson filed suit against the county, then-Chief Margaret A. York, William G. Nash and Victor Turner alleging that he had been denied the promotion in retaliation for exercising his First Amendment rights.
The defendants moved for summary judgment, arguing that Robinson’s reports were not protected speech because they were made as part of his professional duties and because he failed to present the reports through the chain of command as required by written department policy.
Feess denied the motion—finding genuine issues of material fact on the scope of Robinson’s job duties and that a violation of a written chain of command policy was not dispositive—and the individual defendants appealed.
To warrant First Amendment protection, a public employee’s speech must involve a matter of “legitimate public concern,” Judge Michael Daly Hawkins explained in his decision for the appellate court.
As the competency of its police force is a matter of public concern, Hawkins reasoned that both the misconduct reported by Robinson and the question of whether such misconduct was being adequately investigated were both relevant to the public’s evaluation of the agency and consequently each independent matters of public concern.
Hawkins acknowledged that the government’s interest as an employer in “a smoothly-running office” can outweigh an employee’s First Amendment rights under the balancing test established by Pickering v. Board of Education, (1968) 391 U.S. 563, but he emphasized that the government must demonstrate actual, material and substantial disruption of the workplace, or reasonable predictions of disruption, as a result of the employee’s speech.
“Given the evidence that Defendants may have been more concerned with the nature and frequency of Robinson’s reports of misconduct than his adherence to the formal chain of command, a fact-finder could conclude that Defendants’ application of the chain of command policy was pretextual and not based on Defendants’ interest in avoiding workplace disruption,” Hawkins wrote, reasoning that this factual dispute could not be resolved on summary judgment.
Judge Harry Pregerson and Senior U.S. Circuit Judge Richard D. Cudahy of the Seventh Circuit, sitting by designation, joined Hawkins in his opinion.
Jin Suk Choi of Lawrence, Beach, Allen & Choi—formerly known as Franscell, Strickland, Roberts & Lawrence—represented York, Nash and Turner. Sanjay Bansal and Michael A. McGill of Lackie & Dammeier represented Robinson.
The case is Robinson v. York, 07-56312.
Copyright 2009, Metropolitan News Company