Sacramento Employment Lawyer

Public Employees Have Property Interest Rights in their Employment

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Under the US Supreme Court's holding in Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985), public employees who may be dismissed only for cause posess a property interest in their continued employment. The "just cause" limitation in the employer's right to terminate an employee is commonly provided for in the union collective bargaining agreement, memorandum of understanding, the manual of policies and procedures, or in any other kind of agreement between a public employer and employee. 

Having a protected property interest in employeement means that any deprivation of such property, such as termination of employment, requires some kind of due process, which should include a notice and an opportunity to be heard at a hearing prior to being terminated. Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950). Therefore, a public epmloyee with a property interest in his continued employment must be provided with oral or written notice of charges and accusations against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. This kind of process must take place before the termination.

In Calfornia, due process mandates that the employee be accorded certain procedural rights before being removed. At a minimum, these pre-termination safeguards must include a notice of the proposed action against an employee, the reaosns for the action to be taken, a copy of the charges and materials upon which the action is based, and the right to respond to the allegations, either orally or inwriting, to the authroitiy initiating the discipline to be imposed. Jones v Omnitrans 125 Cal.App.4th 273 (2004).  Any such post-termination review or hearing alone does not satisfy the due process requirement that must be provided to the above-referenced employees.

Constitutional Protection of Public Employee's Job in California

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It is often considerably harder to pursue a wrongful termination action against the employer which is a public entity / government agency than a private company due to a number of privileges and immunities that may reduce or even complete insulate a government employer from liability. However, at the same time, public employees also enjoy certain protections and have a number of important rights that their peers in the private sector don't. One such great protection is afforded by the U.S. Constitution.

Under the 5th Amendment Due Process Clause, a state may not deprive a person from life, liberty or property without due process. Although the above rule sounds somewhat abstract and even esoteric, it has a very specific and practical application in the context of employment law, that has been developed during the past few decades, that can allow a public employee to bring a claim whether other claims would fail as a matter of law. A person has a liberty interest in employment protected by the Due Process Caluse if the dismissal effectively precludes future work in the individul's chosen professiona. Merrit v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987). More simply put, if the circumstances of termination are such that they preclude a public employee from obtaining future employment in his area of work / licensure, and he was not afforded at least some kind of pre-termination hearing and an opportunity to challenge it, that employe might have a legitimate due process claim as he was deprived of the liberty to pursue work in his profession. An individual has a liberty interest in employment protected by the Due Process Clause if the dismissal is for reasons that might seriously damage his standing in the community Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 (9th Cir. 1981), or if the dimissal effectively precludes future work in the individual's chosen profession. Greene v. McElroy 360 U.S. 44 (1959). As stated, to establish a violation of such a liberty interest, Plaintiff must show that his dismissal destroyed his freedom to take advantage of other employment opportunities and that because of the dismissal, it is virtually impossible for him to find new employment in a chosen filed. Engquist v Or. Dep't of Agric., 478 F.3d 985, 998 (9th Cir. 2007). This means that "poor performance" or "insubordination" or "tardiness" or other trivial issues will not give rise to this constitution claim unless the discharge renders the public employee / holder of a professional license unemployeable. On the other hand, the more extreme accusations against a public employee such as "unfit for duty" or "violent" or "dishonest and unethical" that lead to discharge are likely to be a constitution violatin of pre-termination hearing was not provided. 

How does an employee prove that he is virtually unemployable. In Braswell v. Shoreline Fire Department (2010), it was sufficient for a plaintiff to get his supervisor to admit under oath that he does not think any other fire department would hire the plaintiff given the allegations that lead to his termiantion, in order to prevent the dismissal of his constitution claim and allow the jury to hear the case. 

The due process claim is particularly helpful where the defamation claim which can be effective against private employer fails as a matter of law due to the absolute privilege against defamation claim that many public offices enjoy. Immunity doess not apply where the conduct exceeds the scope of the manager's authority and when a manager violates plaintiff's clearly established constitutional rights. When the law is clearly established, the qualified immunity defense fails since a reasonably competent public official should know the law governing his conduct.

State Personnel Board Findings Do Not Bar Discrimination and Retaliation Claims in Court

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Whether the State Personnel Board finds that a public employee's discipline or termination was justified has little, if any, bearing on that employee's potential discrimination and retaliation claims under FEHA (Fair Employment and Housing Act). One of the recent cases discussing this issue is the Fifth District's decision in George v. Cal. Unempl. Insurance Appeals Board 179 Cal.App.4th (2009). In that case, the court noted that despite the fact that the service civil proceedings within SPB and the FEHA action seek to redress the same primary right - the right to maintain employment a certain work place, the law recognizes two distinct rights or interests at stake when civil service employee challenges discipline or termination on discriminatory or retaliatory grounds. While the primary right protected by the state civil service system is the right to continued employment, the primary right protected by FEHA is be free from discrimination and retaliation for engaging in a protected conduct. It was also held that state employees may pursue their claims of employment discrimination with either the SPB or DFEH or both. Ruiz v. Dept. of Corrections 77 Cal.App.4th 891 (2000).

The Board's responsibilities are directed at ensuring that state employment is based on merit, while FEHA was implemented to eliminate discrimination and vindicate civil rights in both private and public employment. These are distinctly different rights with different harms even though there may be overlap in the two statutory schemes. For this reason, there is no requirement that a state employee raise the FEHA issue at the SPB hearing.

First Amended Retaliation Protection to Public Employees in California

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On May 24, 2010, the 9th circuit published it's decision in Anthoine v. North Central Counties Consortium"The first amended shields a public employee if he speaks as a citizen on a matter of public concern." Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009). However, "when a public employee makes statements pursuant to his official duty, the employee is not speaking as a citizen for first  amendment purposes, and the Constitution does not insulate his communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 40, 421 (2006). The courts employ a five-step analysis to determine whether an employer impermissibly retaliated against an employee for protected speech: 1. whether the plaintiff spoke on a matter of public concern - matter of political, social or other concern to the community (as opposed to a personal interest); (2) whether the plaintiff spoke as a private citizen or public employee - where the speaker had no official duty to make the questioned statement, or if the speech was not the product of performing the tasks the employee was paid to perform; (3) whether the plaintiff's protected speech was a substantial or a motivating factor in adverse employment action - such as proximity in time between the speech and adverse employment action and/or employer's expression of opposition to the subject speech; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public - the employer must demonstrate actual, material and substantial disruption, or reasonable predictions of disruption in the workplace. Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009); and (5) whether the state would have taken the adverse employment action even absent the protected speech. (fed docket 2:06-cv-01169-JAM-KJM) - an opinion that discusses government employees' protection against retaliation in California.

Considering the various privileges and immunities available to public employers, first amended rights represent a significant protection to state and other governmental workers, exercising free speech. First amendment right usually becomes an issue when a public employee complains about mismanagement, fraud, theft of public funds or other criminal or other egregious violations that he/she witnesses at workplace.

In the recently decided case, mentioned above, the court found that the above elements are satisfied or at least might be satisfied to demonstrate first amended violation, where a low level public employee jumped the chain of command and reported directly to the department chairman that his immediate supervisor misrepresented the status of the employer's compliance with certain legal obligations.