Seemingly Trivial Discipline Leads to Liability Exceeding $6.5M

By Megumi Sakae December 6, 2017
Seemingly Trivial Discipline Leads to Liability Exceeding $6.5M

​The City of Westminster wrongfully discriminated and retaliated against three police officers on the basis of their race and national origin in violation of 42 U.S.C. Section 1981 and California's Fair Employment and Housing Act (FEHA), the 9th U.S. Circuit Court of Appeals held.

The officers—Jose Flores, Ryan Reyes and Brian Perez, all of whom are Latino—filed a lawsuit against the city and three current and former Westminster police chiefs. After a nine-day trial, the jury returned a verdict in favor of the police officers, awarding them $3.34 million in general damages and $3.29 million in attorney fees, plus $40,028 in expert fees and $18,684 in costs.

The officers filed their discrimination complaints with California's Department of Fair Housing and Employment after they were passed over for several promotions and special assignments in favor of less qualified white candidates.

[SHRM members-only toolkit: Preventing Unlawful Workplace Discrimination in California]

After Flores filed his complaint, he was removed from the Field Training Officers (FTO) list of officers chosen to mentor and train new recruits. He also received negative supervisor log entries and reprimands for incidents for which other officers, who did not file complaints, were not disciplined, and he was investigated by Internal Affairs (IA). Before he filed his complaint, Flores had never been disciplined or investigated by IA during his 10-year tenure with the police department.

The city argued that Flores did not establish a claim of retaliation because its actions did not affect the terms, conditions or privileges of his employment. During the trial, the city did not deny that it removed Flores from the FTO list, but it claimed that this was a "relatively trivial incident," as were the log entries and reprimands because they did not impact his job duties or performance.

The jury found in favor of Flores, and the city sought a new trial, which the lower court denied.

On appeal, the 9th Circuit analyzed whether the city subjected Flores to adverse employment actions that affected the terms, conditions or privileges of his employment. In its analysis, the 9th Circuit stated that FEHA does more than protect employees from economic and psychological harm; it also protects them from environments that can detract from their job performance, discourage them from remaining on the job or keep them from advancing in their careers. The court further stated that the employment actions should be considered collectively to see whether, taken together, they constitute an adverse employment action.

The 9th Circuit determined that the actions the city took against Flores affected the terms and conditions of his employment based on evidence submitted to the jury of written feedback for officers seeking special assignments and promotions wherein the supervisors considered the officers' FTO duties and performance issues. According to the 9th Circuit, a jury could infer that Flores' removal from the FTO list, the written reprimands and the negative log entries would have been reviewed as part of the decision-making process on whether to award him a special assignment or promotion.

Thus, the court held that a jury could reasonably determine that the city's actions adversely affected the terms, conditions or privileges of Flores' employment and upheld the lower court's denial of a new trial.  

Flores v. City of Westminster, 9th Cir., No. 14-56832 (Oct. 11. 2017).

Professional Pointer: This decision is a reminder that minor changes to an employee's employment, even seemingly trivial ones, could be seen as retaliatory. When considering whether to take action against an employee, the action should be reviewed broadly to ensure that the impact on the employee is not greater than intended.

Megumi Sakae is an attorney with Marr Jones & Wang LLP, the Worklaw® Network member firm in Honolulu.


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