Thursday, July 25, 2013
LAPD Reserve Officer Not Employee Under FEHA—Court
By KENNETH OFGANG, Staff Writer
A volunteer reserve police officer is not an employee of the agency that he or she serves, within the meaning of the Fair Employment and Housing Act, even if covered by workers’ compensation as a matter of local policy, the Court of Appeal for this district ruled yesterday.
Div. Three affirmed the dismissal of Frank Estrada’s suit against the City of Los Angeles. Estrada was an LAPD reserve officer for 17 years before he was terminated, ostensibly for having “inappropriately” sold a prescription drug through his nutritional supplement company.
Estrada, whose business was raided by the Food and Drug Administration shortly before his termination, claimed the department used the drug accusation as a pretext, and that he was really let go because he had been injured on the job and was receiving workers’ compensation benefits.
As a reserve officer, Estrada received no salary, but was provided with a uniform, equipment, and an expense allowance. The city’s administrative code specifies that reserve officers receive those benefits but otherwise “serve gratuitously” and are not deemed to be, city employees, except for workers’ compensation purposes.
Reserve officer applicants must acknowledge in writing that they will not receive a salary or other “compensation for services rendered.”
Los Angeles Superior Court Judge Charles Palmer tried Estrada’s suit without a jury and ruled that he could not recover because he was not an employee for FEHA purposes.
Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, said uncompensated volunteers are not employees under prior Court of Appeal rulings, including Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625.
The plaintiff in that case was an uncompensated volunteer community service officer for a local police agency. The First District Court of Appeal ruled that because he was not “appointed” to the position, was not hired under express or implied contract, and was not an apprentice, and because there was no case law or public policy treating such persons as employees, he could not claim that the abolition of his position constituted compensable discrimination.
While the plaintiff’s department-issued identification card described him as having been appointed as a CSO, the court held, the controlling law was a local ordinance limiting “appointed” employees to those selected by the town council.
The court also noted that the plaintiff was excluded from workers’ compensation coverage as a public agency volunteer.
Klein also cited Shephard v. Loyola Marymount Univ, (2002) 102 Cal.App.4th 837, in which the court rejected a basketball player’s contention that she was an employee of the university and could sue for racial discrimination based on the revocation of her scholarship.
The court there cited the language of FEHA and its implementing regulations, as well as NCAA bylaws prohibiting athletes from being paid and workers’ compensation law excluding student athletes from coverage.
Similar cases in other jurisdictions, Klein noted, have held that volunteer firefighters, unpaid interns, and athletes who receive no salary for participation are not employees for purposes of state and federal job discrimination statutes.
The presiding justice acknowledged that Estrada’s case was “unlike Mendoza or Shephard” in that the courts in those cases held that the plaintiffs were not employees under either FEHA or the workers’ compensation statutes. Estrada, on the other hand, benefited because Los Angeles, as a charter city, expressly treats reserve officers as employees for workers’ compensation purposes.
“However, the consequence of this policy decision by the City is not to convert these uncompensated volunteers into municipal employees for all purposes,” the jurist wrote. “The fact the City provides volunteer reserve officers with workers’ compensation benefits if they sustain industrial injuries does not change the fact they serve without remuneration. The City’s workers’ compensation benefits, similar to the recurring $50 reimbursement for a volunteer’s out of pocket expenses, simply serve to make a volunteer whole in the event the volunteer were to sustain injury while performing his or her duties.”
The appeal was argued by Cheryl Konell Ruggiero for the plaintiff and by Deputy City Attorney Paul L. Winnemore for Los Angeles.
The case is Estrada v. City of Los Angeles, 13 S.O.S. 3764.
Copyright 2013, Metropolitan News Company