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No Burden-Shifting in Writ Action Contesting Sheriff’s Deputy’s Lack of Promotion—C.A.
Wiley Says Procedure Mandated by U.S. Supreme Court in Title VII Cases, Adopted by California High Court in FEHA Proceedings, Does Not Apply in Suits Under POBRA
By a MetNews Staff Writer
The Court of Appeal for this district has rejected an appellant’s contention that a judge erred in requiring him to prove his contention that the Sheriff’s Department would not promote hm from his job as a deputy to the rank of sergeant for an improper reason—the fact of a disciplinary investigation of him that had been abandoned—rather than shifting the burden to the agency to defend its action, as in a case involving racial discrimination.
Marlon Quesada—who was characterized as a “mediocre employee” by a commander—appealed from Los Angeles Superior Court Judge James Chalfant’s denial of his writ petition challenging the decision not to make him a sergeant. Chalfant spurned his request to apply the burden-shifting requirement set forth by the U.S. Supreme Court in its 1973 decision in McDonnell Douglas Corp. v. Green.
There, the high court dealt with an action by a Black activist who claimed he was fired in violation of Title VII of the Civil Rights Act of 1964. It was held that in such cases, where a prima facie showing is made of racial discrimination, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
The California Supreme Court, in 2000 in Guz v. Bechtel National, Inc., mandated the use of such a procedure in cases brought under the state’s Fair Employment and Housing Act (“FEHA”).
Represented by Jacob A. Kalinski and Brian P. Ross of the Encino law firm of Rains Lucia Stern St. Phalle & Silver, Quesada argued on appeal that, by analogy, the same approach should be applied in actions alleging violations of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”). He claims a violation of a portion of that act—Government Code §3304—which provides, in part: “[N]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”
A 2015 investigation of him—based on his alleged ties to a person engaged in criminal activities and other circumstances, culminating in a notice of an intent to fire him—was “deactivated,” as the department put it, after Quesada pointed out that more than one year had gone by since the probe was commenced, contrary to a one-year limit set in another portion of §3304.
Quesada’s Contention
Chalfant ruled that Quesada had failed to meet his burden of establishing a violation of POBRA but, Quesada protested on appeal, that burden was improperly placed on him. It is uncontested, he noted, that he is a member of the class protected by POBRA and, he maintained, it was up to the Sheriff’s Department to demonstrate that it did not take into account the terminated disciplinary investigation.
Quesada pointed out that the Legislature, in enacting POBRA, declared in Government Code §3301:
“The Legislature hereby finds and declares that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern. The Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers. In order to assure that stable relations are continued throughout the state and to further assure that effective services are provided to all people of the state, it is necessary that this chapter be applicable to all public safety officers, as defined in this section, wherever situated within the State of California.”
He asserted:
“Just as a lawsuit seeking to enforce FEHA implicate important governmental interests and important rights, so too would a lawsuit challenging violations of POBRA enforce important rights that inure to the benefit of the public. Thus, the trial court’s justification for refusing to adopt the burden shifting test fails because it does not take into account the Legislature’s own finding regarding the importance of the rights to be enforced here. Indeed, no case has yet limited the burden-shifting test to only those instances involving discrimination or retaliation based on a suspect classification.”
Wiley’s Opinion
Justice John Shepard Wiley Jr. of this district’s Div. Eight said in an opinion filed Tuesday:
“The McDonnell Douglas approach has no basis in this case. Quesada is not claiming the Department discriminated against him on grounds of race or because he belongs to a historically oppressed and disfavored group. This is not a race case, and it is not akin to a race case.
“Rather, Quesada claims the Department took too long to complete his discipline investigation but later, when evaluating him for promotion, considered that investigation anyway, which was improper. That is his only claim of discrimination.”
Wiley continued:
“The concerns that motivated the McDonnell Douglas rule are absent here. Quesada has framed his suit to place himself, not as a member of a historically oppressed and disfavored class, but as a law enforcement officer seeking a supervisory promotion. This group is not historically powerless. Quesada has not claimed the political process has shut out law enforcement officers or deprived them of a voice in government.”
Access to Evidence
Quesada also urged application of the McDonnell Douglas approach based on his purported lack of access to evidence as to what was taken into consideration in denying him a promotion, saying in his opening brief on appeal:
“In the Los Angeles County Sheriffs Department…, promotional decisions are made in the proverbial smoke-filled room. Decisions are made by a ‘Commanders Panel,’ in which every participant must sign a confidentiality agreement….No contemporaneous notes or emails are permitted….Indeed, the only documentation permitted inside the room is a list of candidates and a spreadsheet with demographic information and units of assignment….These meetings are therefore a black box into which no candidate can gain access.”
He went on to argue:
“The trial court…required Quesada to prove, through either indirect or circumstantial evidence, what was actually considered. However, given the inability to obtain accurate and detailed information from the members of the Commanders Panel, Quesada would be unable to prove what was actually considered. Quesada cannot get into the smoke-filled room, and confidentiality agreements and other privileges would likely prohibit him from obtaining the necessary information from those who actually made the promotional decision.”
Contention Rejected
Wiley responded that “Quesada did not attempt to subpoena or to discover information from the members of the Commanders Panel who decided against him” and that he “had ample access to circumstantial evidence, which can weigh decisively in a plaintiff’s favor,” adding:
“[T]the public has a powerful interest in excellence in policing. Police management must be able to fire bad officers and to refuse to promote mediocre ones, because peace officers enjoy extraordinary powers over the general public. Law enforcement departments must be able to exercise reasonable discretion over personnel decisions, free from the threat of unwarranted litigation by those disappointed by management discretion. Quesada’s proposal would not serve this public interest.”
The case is Quesada v. County of Los Angeles, 2024 S.O.S. 3646.
Arguing for the county were Jeffrey M. Hausman, Larry D. Stratton, and Vincent C. McGowan of the Woodland Hills firm of Hausman & Sosa.
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